How a Street Brawl Led to a 5th Circuit Case That Casts Doubt on the Constitutionality of Many Federal Laws
Challenging his conviction for illegal gun possession, Curtis Squire argues that the Commerce Clause cannot justify bans on intrastate, noncommercial conduct.
A 5th Circuit case that casts doubt on the constitutionality of many federal statutes began with a brawl in New Orleans on a Thursday afternoon in February 2024. Police received a report about a shooting in the 3000 block of Law Street, where witnesses reported hearing dozens of gunshots during a fight that broke out near the Law Street Baptist Church. One of the bullets struck a woman's leg, and another woman was stabbed. Two weeks later, police announced that they had arrested three people in connection with that incident, including Curtis Squire, who was charged with attempted second-degree murder.
Local prosecutors dropped that charge after ballistic testing showed that the Glock pistol found in Squire's home did not match the gun fired during the melee on Law Street. But Squire, who had previously been convicted of heroin distribution, still faced a federal charge under 18 USC 922(g)(1), which criminalizes gun possession by people with felony records. After Squire pleaded guilty to that charge while reserving his right to appeal, he was sentenced to more than four years in federal prison.
Squire asked the U.S. Court of Appeals for the 5th Circuit to overturn his conviction, arguing that it violated the Second Amendment. After a three-judge panel rejected that argument last June, Squire asked the full court to reconsider his case, pressing a claim that goes far beyond the question of whether a drug trafficking conviction justifies stripping someone of his Second Amendment rights: Squire argues that Congress had no constitutional authority to enact Section 922(g)(1), which criminalizes purely intrastate, noncommercial conduct under the pretense of regulating interstate commerce.
If the 5th Circuit agrees with Squire on that point, Judge Stephen Higginson warned in July, when the appeals court agreed to rehear the case, it will "have massive import for federal law," undermining "much of the United States Code." Although Higginson was alarmed by that possibility, it would be welcome news for critics who complain that the Commerce Clause has become an all-purpose license to legislate, in defiance of the principle that the federal government's powers are limited to those explicitly granted by the Constitution.
The Firearms Policy Coalition (FPC) explains why in a brief supporting Squire's appeal that it filed this week. At the Founding, the brief notes, commerce "had a limited and distinct meaning: It referred to 'trade,' in the sense of 'selling, buying, and bartering, as well as transporting for these purposes." Although modern Commerce Clause jurisprudence has strayed far from that original understanding, the FPC argues, it still cannot support the thin constitutional reed that supposedly justifies Section 922(g)(1).
That provision, which Congress enacted as part of the Gun Control Act in 1968, applies to anyone who has been convicted of a crime punishable by more than a year of incarceration. The original version made it a felony for such an individual to "receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Also in 1968, Congress approved a similar provision as part of the Omnibus Crime Control and Safe Streets Act. That one covered anyone convicted of "a felony" who "receives, possesses, or transports" a firearm "in commerce or affecting commerce." But in the 1977 case Scarborough v. United States, the Supreme Court said "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 relevant to Squire's case, the Court was merely interpreting the statute. It did not pass judgment on whether the law was authorized by the Commerce Clause—a question that was not before it.
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 original language about receiving a gun "shipped or transported in interstate or foreign commerce" but also covers firearm possession "in or affecting commerce."
Squire was convicted under the latter prong. As is typically the case, the only evidence that he possessed a gun "in or affecting commerce" was that the weapon had at some point crossed state lines. As the FPC notes, establishing that element is rarely difficult: "The government has proffered testimony that 95% of all guns in the United States have crossed state lines."
In other words, the constitutional rationale for making a federal case out of the pistol found in Squire's living room is barely more demanding than requiring proof that the gun was made of metal. Can that possibly suffice to treat Section 922(g)(1) as an exercise of the power to regulate interstate commerce?
The FPC thinks not. "Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon," it says, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.
In the 1995 case United States v. Lopez, the Supreme Court ruled that Congress had exceeded its Commerce Clause authority when it passed the Gun-Free School Zones Act of 1990, which made it a felony 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 noted in the majority opinion. "If we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without 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."
Concurring in Lopez, Justice Clarence Thomas agreed that Congress had clearly overstepped its authority. "The power to regulate 'commerce,'" he said, "can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States."
Congress responded to Lopez by amending the Gun-Free School Zones Act to specify that it applied only to "a firearm that has moved in or that otherwise affects interstate or foreign commerce." Although federal appeals courts implausibly concluded that Congress had fixed the problem identified by Rehnquist, the Supreme Court has not revisited the law.
Five years after Lopez, the Supreme Court ruled that the Commerce Clause could not justify a provision of the Violence Against Women Act that established a federal cause of action for victims of gender-motivated violence. "We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims," Rehnquist wrote in United States v. Morrison. The Court rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."
Under the principles recognized in Lopez and Morrison, the FPC argues, a federal ban on gun possession like Section 922(g)(3) cannot be justified by the Commerce Clause. And that is true, it says, even under the superelastic version of that clause imagined by the Supreme Court in decisions like Wickard v. Filburn (1942), which upheld enforcement of federal limits on wheat production, and Gonzales v. Raich (2005), which upheld the federal ban on medical marijuana.
In Wickard, the Court said a farmer could be fined for growing too much wheat even if the offending grain never left his property. In Raich, it likewise said Congress could prohibit possession of marijuana that was never sold and never crossed state lines, even when it was used by patients in compliance with state law. But in both cases, the Court linked the challenged restrictions to enforcement of a broad federal policy involving interstate commerce: agricultural quotas aimed at regulating the supply and price of legal crops in Wickard and a ban aimed at eliminating the production and distribution of an illegal crop in Raich.
The gun law that Squire violated, by contrast, is not aimed at regulating interstate commerce. It is aimed at "the suppression of violent crime"—a quintessential exercise of the broad police power that was never granted to the federal government. As Rehnquist noted in Morrison, "the regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States."
Lopez and Morrison "foreclose any argument that the Commerce Clause authorized Congress to enact" Section 922(g)(1), the FPC says. That law, it notes, "does not regulate economic activity" and "does not regulate any smaller part of a comprehensive economic program." And under Lopez and Morrison, Section 922(g)(1) "cannot be transformed into the regulation of interstate commerce by 'aggregating' the effects of all the violence the law hopes to avoid."
The FPC made similar points in United States v. Hemani, the Supreme Court case involving 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of "any controlled substance" to receive or possess a firearm. In that case, which was decided last June, the Court unanimously ruled that Americans cannot be disarmed or prosecuted for illegal gun possession simply because they use marijuana. Although the decision hinged on the Second Amendment, Thomas wrote a concurring opinion that cited the FPC brief and reiterated his skepticism of the Commerce Clause justification for federal bans on intrastate gun possession.
Such laws do not "regulate the 'use of the channels of interstate commerce,'" Thomas noted, because they criminalize "possession of a firearm within a State long after any use of those channels." Nor do they "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce," since they require "no showing that the possession in question poses any risk to interstate buying, selling, shipping, or transportation."
Thomas also doubted that such gun bans are directed at "activities that substantially affect interstate commerce." He noted that "the mere possession of a firearm that long ago crossed state lines is not 'economic activity' in any sense, and the Court has never upheld regulation of intrastate activity that is not 'economic in nature' under this category."
In short, Thomas said, Section 922(g)(3) "appears to exceed Congress's
enumerated power to regulate interstate commerce." The same observation applies to Section 922(g)(1) and other provisions that ban gun possession by broad categories of "prohibited persons."
The FPC's 5th Circuit brief, which quotes Thomas' concurrence in Hemani, urges the appeals court to take his objections seriously. In light of Lopez and Morrison, "the only question under the Commerce Clause" is "whether the addition of a once-traveled-in-interstate-commerce jurisdictional element can salvage this law," it says. "But a requirement that can be satisfied by virtually every single firearm in the Nation does not make this legislation any less of an attempted exercise of a police power than the law in Lopez."
That argument makes Higginson uneasy. "This case hazards untold consequences for federal law," he wrote in July. "Finding that this statute, with an explicit interstate commerce nexus, must fall would mark the start of a new, severely contracted
Commerce Clause era."
The impact of such a ruling "is hard to overstate," Higginson said. "What would come of the countless other federal statutes hinging on Congress's well-settled commerce authority? Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?"
The answer in some of those cases might be yes. But to the extent that such laws criminalize noneconomic, intrastate conduct with no plausible connection to interstate commerce, they are unconstitutional, and courts should not be afraid to say so.
"The federal government does not get to use the Commerce Clause as a backdoor to powers the Constitution never gave it," FPC President Brandon Combs says. "A firearm does not become subject to permanent federal control just because it crossed a state line sometime in the past. That fiction has been used for far too long to manufacture federal crimes out of purely local conduct. Congress has limited, enumerated powers, and it is time for courts to enforce those limits."