A 5th Circuit proceeding that questions the validity of a wide range of federal statutes began with a fractious encounter in New Orleans on a Thursday afternoon in February 2024. Law enforcement received a report of gunfire in the 3000 block of Law Street, where onlookers described hearing numerous shots during a dispute near the Law Street Baptist Church. One bullet struck a woman’s leg, and another woman was assaulted with a knife. Two weeks afterward, authorities announced arrests in connection with the incident, including Curtis Squire, who faced an attempted second-degree murder charge.
Local prosecutors later dropped that charge after ballistic testing indicated that the Glock pistol recovered from Squire’s residence did not match the weapon fired during the Law Street melee. Yet Squire, who had previously been convicted for heroin distribution, remained subject to a federal accusation under 18 USC 922(g)(1), which criminalizes gun possession by individuals with felony records. Following a guilty plea on that count while preserving his right to appeal, he received a sentence exceeding four years in federal prison.
Squire appealed his conviction to the U.S. Court of Appeals for the Fifth Circuit, asserting that it violated the Second Amendment. After a three-judge panel dismissed that claim last June, Squire urged the full court to revisit the case, elevating a challenge that reaches beyond whether a drug-trafficking conviction justifies disarming an individual. He contends that Congress lacked constitutional authority to enact Section 922(g)(1), which criminalizes purely intrastate, noncommercial conduct under the pretense of regulating interstate commerce.
If the Fifth Circuit sides with Squire on this point, Judge Stephen Higginson warned during July, when the court agreed to rehear the matter, it would carry far-reaching consequences for federal law, potentially undermining “a substantial portion” of the United States Code. Although Higginson admitted that such a outcome would alarm critics who contend that the Commerce Clause has become a general license to legislate, it would be broadly welcomed by those who argue that the federal government’s powers are limited to what the Constitution expressly grants.
The Firearms Policy Coalition (FPC) explains its position in a brief supporting Squire’s appeal that it filed this week. At the time of the Founding, the brief notes, commerce had a restricted and distinct meaning: it referred to “trade,” understood as the exchanging of goods through selling, buying, and bartering, as well as the transporting of those goods for such purposes. Although modern Commerce Clause jurisprudence has drifted far from that original interpretation, the FPC contends, it still cannot sustain the slender constitutional reasoning that supposedly licenses Section 922(g)(1).
That provision—enacted by Congress as part of the Gun Control Act in 1968—applies to any person who has been convicted of a crime punishable by more than a year in prison. The original version criminalized the act of receiving any firearm or ammunition that had been shipped or transported in interstate or foreign commerce.
Also in 1968, Congress enacted a closely related provision as part of the Omnibus Crime Control and Safe Streets Act. That provision targeted anyone convicted of “a felony” who “receives, possesses, or transports” a firearm “in commerce or affecting commerce.” However, in the 1977 case Scarborough v. United States, the Supreme Court stated that “proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.”
As it pertains to Squire’s case, the Court was merely interpreting the statute. It did not determine whether the law found its authority in the Commerce Clause—a question not before it at that time.
In 1986, the Firearms Owners’ Protection Act eliminated the provision at issue in Scarborough and revised Section 922(g)(1). The current version retains the language about receiving a gun “shipped or transported in interstate or foreign commerce” but also encompasses possession “in or affecting commerce.”
Squire was convicted under the latter clause. As is often the case in such matters, the sole evidence tying him to possession of a firearm “in or affecting commerce” was the fact that the weapon had at some point crossed state lines. As the FPC notes, establishing that element is rarely difficult: “The government has offered testimony that 95% of all guns in the United States have crossed state lines.”
In other words, the constitutional justification for treating the pistol found in Squire’s living room as a federal issue is hardly more demanding than proving the gun was made of metal. Could that arguably be enough to treat Section 922(g)(1) as an exercise of the power to regulate interstate commerce?
The FPC argues that it cannot. “Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon,” the brief asserts, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.
In the 1995 decision United States v. Lopez, the Supreme Court held that Congress had exceeded its Commerce Clause authority when it enacted the Gun-Free School Zones Act of 1990, which made it a crime to possess a firearm within 1,000 feet of a school. “The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce,” Chief Justice William Rehnquist observed in the majority opinion. “If we were to accept the Government’s arguments, we would be hard pressed to identify any activity by an individual that Congress lacks power to regulate.” Rehnquist also noted that the law “contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.”
Joining Lopez, Justice Clarence Thomas agreed that Congress had clearly overstepped its authority. “The power to regulate ‘commerce,’” he stated, “can by no means encompass authority over mere gun possession, any more than it empowers
Natalie Foster
I’m a political writer focused on making complex issues clear, accessible, and worth engaging with. From local dynamics to national debates, I aim to connect facts with context so readers can form their own informed views. I believe strong journalism should challenge, question, and open space for thoughtful discussion rather than amplify noise.