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 follows the July 20 en banc rehearing grant in United States v. Squire, a challenge to the same prohibition under the Commerce Clause. These cases test whether Congress had the power in the first place, and even if so, is it prohibited from doing so?
As I posted previously, Squire posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation." As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…." That issue together with Squire's Commerce Clause challenge were held to be foreclosed by circuit precedent. Section 922(g)(1) includes as an element of the offense 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."
Unsuccessful attempts to rein in Congress on the Commerce Clause included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus. Based on the Supreme Court's decisions 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 is within the scope of the Commerce Clause. Beginning with U.S. v. Lopez (1995), he argues, 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 case, the per curiam opinion noted felony convictions for drug possession, which doesn't necessarily count anymore, and for evading arrest with a motor vehicle. The Second Amendment challenge was easily rejected: "Given that 'vehicular pursuits' are 'often catastrophic,' Cordova's decision to use a car to evade the police is probative of his dangerousness…. Cordova's decisions posed a risk to his fellow citizens and demonstrate that he poses a credible threat to the physical safety of others." But two judges on the panel only concurred in the judgment.
Judge James C. Ho set the tone for his concurrence by beginning: "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 the possession of a firearm. And it does so even if the person has never been sentenced to serve a single day in prison." Cordova himself was not sentenced to serve a single day in prison. 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." Concurring, Justice Gorsuch noted that "[w]e do not resolve whether the government may disarm an individual permanently." Judge Ho concluded by repeating 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 also set the tone with his opening line: "The Second Amendment reflects a fundamental, God-given right that long predates our Nation's Founding…." Characterizing 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, which has never been a basis for depriving a convicted person of constitutional rights, and for relying on two losing arguments at the origin of the Constitution (you have to go to 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 is a history of how the right to keep and bear arms came to be. But regardless of the justifications given for depriving specified groups of arms, "all agreed that the legality of disarming seventeenth-century Englishmen turned on dangerousness." Judge Oldham concludes:
As this process shows, evaluating a defendant's as-applied challenge to § 922(g)(1) requires historical analysis. It requires looking beyond an individual predicate conviction. It requires looking at whether an individual is dangerous. That study coheres with the long English and American history of disarming dangerous people. Cordova's criminal history and characteristics demonstrate that he is dangerous. I would rely on that dangerousness analysis, not Diaz's nonsensical legal standard, to hold that Cordova's constitutional challenge fails.
All of that said, the Fifth Circuit granted Cordova's petition for rehearing en banc. His convictions were not for offenses as innocuous as, say, the decades old conviction for welfare fraud in Range v. Attorney General U.S. (3d Cir. 2024).
