A convicted heroin trafficker’s case has evolved from a Second Amendment dispute into a broader test of Congress’ commerce power
A federal gun possession case out of Louisiana has turned into one of the most consequential constitutional disputes moving through the courts this year, after the U.S. Court of Appeals for the Fifth Circuit agreed to rehear it en banc on a theory Justice Clarence Thomas floated just weeks earlier — one that could call into question the constitutional foundation of a huge share of federal law.
From Second Amendment Claim to Commerce Clause Fight
The case centers on Curtis Squire, who was charged under 18 U.S.C. § 922(g)(1), the federal law barring convicted felons from possessing firearms, after police found a handgun in his New Orleans home during a 2024 investigation. Squire’s criminal history includes convictions for heroin trafficking, burglary, and other offenses. Ballistics testing showed the gun was not connected to the incident that prompted the search, and related state charges were dropped, but federal prosecutors moved forward with the felon-in-possession charge.
A three-judge Fifth Circuit panel initially rejected Squire’s Second Amendment challenge on June 2, concluding that history supports disarming convicted drug traffickers on dangerousness grounds. But Squire’s petition for rehearing shifted the argument onto different constitutional footing entirely: rather than arguing he has a right to keep the gun, he argued Congress never had the authority to criminalize simple firearm possession in the first place, because a gun sitting in a private home isn’t interstate commerce.
That argument has been rejected by every federal circuit for roughly three decades — the Fifth Circuit itself held in 2001 that the constitutionality of § 922(g) was “not open to question.” But something changed a few weeks before Squire’s petition: Justice Thomas.
Thomas’s Concurrence
In June, the Supreme Court ruled unanimously in United States v. Hemani that the government cannot strip someone of Second Amendment rights simply because they use marijuana, striking down a prosecution brought under a related provision of the same statute, § 922(g)(3). Thomas joined that ruling but wrote separately to raise a different, broader objection.
Thomas argued that Congress’s power under the Commerce Clause — the constitutional provision underlying the vast majority of federal law — does not extend to banning possession of an item merely because it once crossed state lines or was offered for sale at some point in its history. <cite index=”51-1″>In Thomas’s view, even under the Supreme Court’s own broad understanding of that clause, laws like § 922(g) do not qualify as legitimate regulation of interstate commerce.</cite> He wrote that Congress “lacks the power to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past,” and explicitly urged the Supreme Court and lower courts to revisit the statute’s constitutionality — despite acknowledging the Commerce Clause question wasn’t actually presented in the case before him.
The argument is not new for Thomas. It echoes his dissent in the Court’s 2005 medical marijuana ruling, Gonzales v. Raich, where he warned that if Congress could regulate purely local, non-commercial activity under the Commerce Clause, “then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”
The Fifth Circuit Answers the Call
Barely a month after Thomas’s concurrence, the full Fifth Circuit voted on July 20 to vacate the panel’s decision and rehear Squire’s case en banc — reframing what had been a narrow, as-applied Second Amendment claim into a facial challenge to Congress’s commerce authority itself. One judge on the circuit, James Higginson, dissented from the decision to take up the case.
Importantly, the Fifth Circuit has not struck down § 922(g), thrown out Squire’s conviction, or ruled that felons generally have a right to possess firearms. What it has done is agree to reconsider, from scratch, whether Congress had the constitutional authority to enact the felon-in-possession ban at all.
Why It Matters Beyond One Case
Legal observers note the stakes extend well past Squire. Section 922(g) and its various subsections form the backbone of federal firearm regulation, reaching everything from felon possession bans to restrictions on domestic abusers and unlawful drug users. The government has long defended these provisions by pointing to the fact that virtually every firearm has, at some point, crossed a state line during manufacturing or sale — a theory that traces back to a 1977 Supreme Court case, Scarborough v. United States, holding that a firearm’s history of interstate travel was sufficient to bring it under federal jurisdiction.
Thomas argues that reliance on Scarborough is misplaced, since that case involved statutory interpretation rather than a constitutional ruling on the scope of the Commerce Clause. If the full Fifth Circuit ultimately agrees with that reasoning, the resulting decision would not just affect Squire’s case — it could establish a ceiling on Congress’s ability to regulate firearms nationally, potentially reaching future gun control measures like national registration schemes, in addition to renewing scrutiny of federal drug laws that rely on the same constitutional authority.
What Comes Next
The Fifth Circuit has not set a date for oral argument in the en banc rehearing. Given the scope of the question and the degree to which it departs from decades of settled precedent, a ruling striking down the statute — should it happen — would almost certainly be appealed to the Supreme Court, setting up a direct test of the Commerce Clause theory Thomas has championed, on and off, for more than two decades.
This story is developing.
