Fifth Circuit Rehears Felon Gun Ban Challenge After Clarence Thomas

The full U.S. Court of Appeals for the Fifth Circuit has agreed to rehear a challenge to one of the federal government’s most frequently used gun laws, responding to an invitation from Supreme Court Justice Clarence Thomas to reconsider whether Congress exceeded its constitutional authority under the Commerce Clause.

The Case at Hand

On July 20, a majority of the active judges on the Fifth Circuit voted to rehear United States v. Squire en banc, vacating a June 2 panel decision that had upheld the conviction of Curtis Squire, a convicted felon from New Orleans. The case, which began as a narrow Second Amendment challenge, has evolved into a far broader question: whether Congress had the constitutional power under the Commerce Clause to enact 18 U.S.C. § 922(g)(1), the federal law making it a crime for convicted felons to possess firearms.

According to Fox News, Squire was indicted after police found a handgun in his New Orleans home while executing a search warrant during a shooting investigation. The firearm was never tied to the shooting, and related state charges were dropped. However, because of Squire’s extensive criminal history — including convictions for heroin trafficking, firearm offenses, burglary, obstruction of justice, and unauthorized use of a motor vehicle — federal prosecutors charged him under the felon-in-possession statute.

Thomas’s Invitation

The Fifth Circuit’s decision came weeks after Justice Thomas issued a concurring opinion in United States v. Hemani, a case decided June 18 in which the Supreme Court unanimously ruled that the government may not prosecute marijuana users for gun possession under the Second Amendment. Thomas agreed with the outcome but wrote separately to argue that Section 922(g) “appears to exceed Congress’s powers under the Commerce Clause.”

As Reason magazine reported, Thomas argued that the Commerce Clause authorizes Congress only “to regulate the buying and selling of goods and services trafficked across state lines,” not “activities wholly separated from business, such as gun possession.” He warned that allowing Congress to regulate possession of any item that ever crossed state lines would “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

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

A Sharp Divide on the Court

The Fifth Circuit’s decision to rehear the case has sharply divided the court. Judge Stephen Higginson, dissenting from the en banc order, warned of “untold consequences for federal law.”

“Already, our court answers the call,” Higginson wrote, referring to Thomas’s invitation. He posed a series of alarming questions: “Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons? Past the Title 18 level, do we lose regulations on financial transactions? On intellectual property? On endangered species?”

Higginson characterized the decision as “a significant departure from existing, settled, and binding Commerce Clause jurisprudence” that could “mark the start of a new, severely contracted Commerce Clause era.”

The Legal Stakes

The core legal question is whether Congress had constitutional authority under the Commerce Clause to criminalize firearm possession by convicted felons, given that the only connection to interstate commerce is that the firearm once crossed state lines. For decades, courts have upheld the law under this theory, but Thomas argues that this reasoning stretches the Commerce Clause far beyond its original meaning.

Legal commentator Eric Wessan told Fox News Digital that the case “began as a Second Amendment as-applied challenge but now has been reframed to raise core questions about federal power.” He added that “a ruling could significantly reshape Second Amendment jurisprudence, longstanding Commerce Clause precedent, and the scope of federal criminal law.”

If the Fifth Circuit rules that Section 922(g)(1) exceeds Congress’s authority, the implications would be enormous. The law currently prohibits an estimated 20 million Americans with felony convictions from possessing firearms. A ruling against the government could also create ripple effects across federal law, potentially affecting statutes criminalizing possession of child pornography, explosives, and biological weapons, as well as regulations on financial transactions and endangered species.

Historical Context

The challenge comes amid a broader judicial reexamination of federal power. In United States v. Lopez (1995), the Supreme Court ruled that Congress exceeded its Commerce Clause authority by passing the Gun-Free School Zones Act. Five years later, in United States v. Morrison (2000), the Court rejected the argument that Congress may regulate noneconomic, violent criminal conduct based solely on its aggregate effect on interstate commerce.

However, in Gonzales v. Raich (2005), the Court held that the Commerce Clause authorized Congress to ban intrastate possession of medical marijuana — a decision Thomas dissented from, arguing it would allow Congress “to regulate virtually anything.”

What’s Next

The Fifth Circuit has not yet scheduled oral arguments for the en banc rehearing. The court could rule narrowly on the Second Amendment as-applied challenge or broadly on the facial Commerce Clause question. If the court rules against the government, the Supreme Court may ultimately decide the issue, potentially giving Thomas’s long-held views on limited federal power their most significant test yet.

For now, the case represents what Judge Higginson called a “hazard” to settled federal law — and a pivotal moment in the ongoing debate over the scope of federal authority under the Constitution.