Fifth Circuit Takes Justice Thomas Up on Challenge to Federal Gun-Control Power

The full court vacated its earlier ruling in United States v. Squire and may now test Congress’s Commerce Clause authority behind 18 U.S.C. §922(g)(1).

On July 20, the Fifth Circuit agreed to rehear United States v. Squire en banc, opening a potentially sweeping challenge to the federal gun bans contained in 18 U.S.C. §922(g)(1). At issue is whether Congress can turn purely local firearm possession into a federal interstate-commerce crime merely because the gun once crossed a state line.

The federal government has relied on that thin jurisdictional hook for decades. The Fifth Circuit may finally be preparing to test it against the Constitution.

The Fifth Circuit has not struck down § 922(g), dismissed Squire’s indictment, or declared that all convicted felons may possess firearms. What the court has done is erase the panel opinion and agree to reconsider a case that could reach far beyond one defendant.

A Gun Unconnected to the Crime

Squire’s case began after a February 2024 shooting in New Orleans. Police searched his home under a warrant alleging his involvement and found a handgun. Testing established that the gun was not connected to the shooting, and the related state charges were dismissed.

Federal prosecutors then charged Squire with possessing a firearm as a prohibited person. His criminal history included convictions involving heroin trafficking, possession of a firearm with a controlled substance, obstruction of justice, burglary, and unauthorized use of a motor vehicle.

Squire pleaded guilty without a plea agreement, preserving his right to appeal, and received 52 months in federal prison followed by three years of supervised release.

A three-judge Fifth Circuit panel originally rejected his argument that permanently disarming him inside his own home violated the Second Amendment. The panel concluded that convicted drug traffickers could be categorically classified as dangerous and disarmed under the nation’s historical tradition of firearm regulation.

The panel’s June 2 opinion even relied partly on historical laws disarming political dissidents and religious minorities as analogues supporting modern firearm prohibitions—a deeply troubling foundation for stripping Americans of a constitutional right.

That entire opinion has now been vacated.

Is a Gun “Interstate Commerce” Forever?

The two-page majority order provides no explanation for granting rehearing. Judge Stephen Higginson’s dissent, however, leaves little doubt about the stakes.

“Just a few weeks ago, Justice Thomas, writing alone, asked lower courts to reexamine the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause,” Higginson wrote. “Already, our court answers the call.”

According to Higginson, the case has been transformed from a Second Amendment challenge into something potentially much larger:

“Today, we grant a petition for rehearing in what was a Second Amendment as-applied challenge to § 922(g)(1), now reframed as a facial Commerce Clause challenge.”

Section 922(g) prohibits several categories of people from possessing firearms or ammunition “in or affecting commerce.” Under longstanding federal precedent, the government satisfies that element merely by showing that a firearm or cartridge crossed state lines at some point in its existence.

The defendant does not need to have transported it across state lines. The possession does not need to involve a sale, shipment, or any other commercial activity. A gun manufactured outside Louisiana but later found sitting inside a Louisiana home is supposedly enough to give Washington jurisdiction.

Squire admitted that his firearm and ammunition were manufactured outside Louisiana. The question is whether that past movement permits Congress to regulate his present, entirely intrastate possession.

Justice Thomas Opened the Door

Justice Clarence Thomas raised precisely that issue in his concurrence in United States v. Hemani, the Supreme Court decision striking down the federal prosecution of a marijuana user under § 922(g)(3).

“The Commerce Clause does not authorize Congress to ‘regulate or ban possession of any item that has ever been offered for sale or crossed state lines,’” Thomas wrote. Otherwise, federal commerce authority becomes “a general police power of the sort retained by the States.”

Thomas concluded that “the Court, and lower courts, should revisit the constitutionality of § 922(g).”

The Fifth Circuit is now positioned to do exactly that.

Higginson warned that the court has “welcomed the possibility of finding that Congress’s Commerce Clause authority cannot support § 922(g).” Such a decision, he said, “would have massive import for federal law.”

He is correct about the stakes, even if his dissent treats those consequences as a reason to back away from the constitutional question.

Constitutional Limits Do Not Depend on a Defendant’s Popularity

Curtis Squire is not the sympathetic face gun owners would choose for a landmark Second Amendment case. That is also beside the point.

Constitutional limits on federal power do not disappear because the defendant has an ugly criminal history. Congress possesses only the powers granted to it by the Constitution. General police power remains with the states.

A state might have the authority to prohibit a particular dangerous felon from possessing a firearm. That does not automatically mean Congress can federalize local gun possession by pointing out that the firearm crossed a state border years earlier.

If the Fifth Circuit ultimately rejects the government’s minimal-nexus theory, the decision could call into question every prohibited-person category within § 922(g), at least within Texas, Louisiana, and Mississippi. It would also create a major split with every other federal circuit and almost certainly put the issue on a path toward the Supreme Court.

For the first time in decades, a federal appeals court appears willing to ask whether Washington’s interstate-commerce excuse has turned a limited constitutional power into an unlimited federal gun-control license.

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About Duncan Johnson:

Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor to AmmoLand News and serves as part of the editorial team responsible for AmmoLand’s daily gun-rights reporting and industry coverage.

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