Washington, D.C. has spent decades using one flimsy excuse to turn local gun possession into a federal crime: The gun crossed state lines at some point. That’s the hook. That’s the scam. And now the Fifth Circuit Court of Appeals may finally be ready to drag it into the sunlight.
The court has agreed to rehear United States v. Squire en banc, reopening a major fight over whether Congress can use the Commerce Clause to criminalize firearm possession simply because a gun or ammunition once moved in interstate commerce. The Fifth Circuit’s rehearing order even drew a warning from Judge Stephen Higginson that the court had “welcomed the possibility” of holding that Congress’ Commerce Clause power can’t support § 922(g).
The Feds’ Favorite Gun Control Trick
The government’s theory is simple. If a firearm was made in another state, Washington, D.C. claims it can regulate possession of that gun forever. No sale required. No shipment required. No trafficking required. No actual interstate commerce required. Just possession.
Under that theory, a gun sitting in a home in Texas can become a federal case because it was manufactured somewhere else, possibly years earlier. Texas Gun Rights sees this for what it is: a federal police power dressed up in Commerce Clause language.
This Fight Is Bigger Than Squire
Squire involves 18 U.S.C. § 922(g)(1), the federal prohibited person statute. A prior Fifth Circuit panel affirmed Curtis Squire’s conviction after he pleaded guilty to possession of a firearm as a convicted felon, while preserving his right to appeal. But the no-compromise issue is much bigger than one defendant.
The question is whether Washington can federalize gun possession with a paper-thin interstate commerce connection. For years, courts have let federal prosecutors get away with it. A gun was made in one state and later found in another. That was enough.
If that theory survives untouched, nearly every firearm in America becomes a federal hook.
Where Does Washington’s Power Stop?
The Constitution gives Congress power over interstate commerce. It doesn’t give Congress a blank check to police every gun owner in America. But that’s exactly how federal gun control operates.
Washington stretches the Commerce Clause until almost every firearm, every round of ammunition, every private sale, and every local possession case can be dragged into federal court. The Second Amendment gets treated like a privilege. The Tenth Amendment gets ignored. And the ATF gets another excuse to stick its nose into the lives of gun owners.
A Long-Overdue Reckoning
The Fifth Circuit hasn’t struck down § 922(g). This case isn’t over. But the court is now staring directly at one of the legal theories propping up Washington’s gun-control machine.
For anti-gun politicians and federal prosecutors, that should be terrifying. Because if the courts start asking where federal power ends, decades of gun-control assumptions could begin to crack.
Chris McNutt is president of Texas Gun Rights.
Commerce Clause is the underlying legal theory behind most of the unelected fourth branch. It’s unlikely the ones in charge are going to let a challenge to that get very far. The idea that you participate in interstate commerce by NOT PARTICIPATING is nearly century old case law.
Moreover, the idea that someone convicted of a crime of moral turpitude is not to be trusted with firearms is well within Bruen’s test. Why are we fighting this? I don’t see it going anywhere from that perspective either.
You are correct that Wickard v. Fillburn (New Deal era case that held essentially just about everything is subject to regulation under the Commerce Clause) is the wellspring of the modern overreaching federal administrative state.
But like the recent end of Chevron and Auer deference and Roe v. Wade, and SCOTUS’s renewed recognition of Second Amendment rights that started with Heller and matured in Bruen, just because a bad precedent exists doesn’t necessarily mean it is permanent. For some time now, SCOTUS has telegraphed that it might be ready to reconsider Wickard (or at least severely cabin it).
Recall that in Lopez, the Fifth Circuit found that the federal law prohibiting possession of a firearm within x feet of schools was unconstitutional because it had an insufficient nexus to the regulation of interstate commerce. Recall also that SCOTUS then affirmed that decision — the first time it had indicated that there were in fact any limitations on the scope of Wickard.
Recall too that, as I observed when the Hemani decision came out (see comment section of https://www.shootingnewsweekly.com/gun-rights/breaking-scotus-unanimously-rules-regular-users-of-marijuana-cant-be-denied-their-second-amendment-rights/ ), Justice Thomas has explicitly written that firearms regulations should not be automatically assumed to be proper under the Commerce Clause. (Good explanatory article on this: https://indiana2a.com/justice-clarence-thomas-warning/).
My reading is that Justice Thomas’ allies on the Fifth Circuit (e.g., Jones, Ho, Willett) are ready to take Justice Thomas’ Hemani concurrence and run with it. The fact that the Court granted en banc rehearing says to me that the votes are probably there to do so.
If the Fifth Circuit does so, it creates a real dilemma for the left. If they let the decision stand, it kicks the legs out from under all sorts of federal gun laws. But if they push to have SCOTUS hear the case, it could be a vehicle for the High Court to go even further and formally reject Wickard . . . which would be a legal earthquake of almost unimaginable magnitude, as it could lead to successful challenges of huge swaths of current federal regulatory laws. And add in that the Trump DoJ might well go along with that, and also ask the Court to reconsider Wickard.
My read is that if the Fifth Circuit invalidates the possession law, the left will probably decide they want to leave it alone, because the decision will only affect three states (TX, LA, MS) and the risks of giving SCOTUS a vehicle to overturn Wickard are just too great.
The judges on the Fifth Circuit are likely aware of this dynamic as well, and so I am cautiously optimistic about how this one will turn out.
About the same age as Humphrey’s Executor, am I right?
Left wing liberals that voted for communism are upset that communism is coming for them: BACKFIRE | Mamdani Liberal SHOCKED That NYC Doxxed Him For Being Wealthy.
ht* tps://www.youtube.com/watch?v=f-8aUYqVIe4
Not just Wickard v. Fillburn. Think about the intellectual pile of sand which is the basis of Raich.