Clarence Thomas' constitutional argument against federal gun law gets first major court test
A convicted heroin trafficker's appeal could upend one of the federal government's most-used gun laws after a federal appeals court agreed to reconsider its constitutional foundation, weeks after Justice Clarence Thomas urged lower courts to take a fresh look at whether Congress had the authority to enact it.
The full Fifth Circuit Court of Appeals voted Monday to rehear United States v. Squire, a case that could determine whether Congress exceeded its constitutional authority when it enacted the federal law making it a crime for convicted felons to possess firearms.
The case stems from an appeal by convicted felon Curtis Squire, who was charged after police found a handgun in his New Orleans home while executing a search warrant. While his appeal began as a Second Amendment challenge, the case has evolved into a broader question: whether Congress had the constitutional authority under the Commerce Clause to criminalize firearm possession by convicted felons at all.
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The appeals court's decision marks a significant shift in the case and the first major appellate response to Thomas' recent concurrence in United States v. Hemani, in which he urged courts to reconsider the constitutional foundation of federal law.
For decades, courts have upheld the law because Congress has the power to regulate interstate commerce, even if the only connection is that the gun crossed state lines before the defendant possessed it.
But Thomas argued that goes too far, writing in Hemani 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 also rejected the long-standing theory that Congress may regulate firearm possession simply because the firearm once moved in interstate commerce.
"Congress cannot regulate the possession of every thing that ever traveled across state lines," Thomas wrote, warning that such an interpretation risks converting Congress' limited commerce authority into "a general police power of the sort retained by the States."
He concluded that the issue "merits a closer look in an appropriate case."
"The Court, and lower courts, should revisit the constitutionality of §922(g)," Thomas wrote.
The Fifth Circuit's decision to rehear Squire suggests at least some judges agree that question warrants fresh consideration, though the move sharply divided the court.
Judge Stephen Higginson, who dissented, warned the case has evolved from a narrow Second Amendment dispute into a much broader challenge to Congress' power under the Commerce Clause, one that could have far-reaching consequences for federal law.
He said striking down Section 922(g) would be "a significant departure from existing, settled, and binding Commerce Clause jurisprudence" and could "mark the start of a new, severely contracted Commerce Clause era."
"Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?" Higginson asked. "Past the Title 18 level, do we lose regulations on financial transactions? On intellectual property? On endangered species?"
"All told, this case hazards untold consequences for federal law," he concluded.
Eric Wessan echoed Higginson, saying the case now presents fundamental questions that extend beyond the Second Amendment.
"The case began as a Second Amendment as-applied challenge but now has been reframed to raise core questions about federal power," Wessan told Fox News Digital. "A ruling could significantly reshape Second Amendment jurisprudence, longstanding Commerce Clause precedent, and the scope of federal criminal law."
"If the Fifth Circuit finds that the law exceeds Congress's authority, it could potentially affect millions of Americans, interstate regulation, and the balance between federal authority and constitutional limits," Wessan said.
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Squire was indicted after police found a handgun inside his New Orleans home while executing a search warrant during a shooting investigation. Although the firearm was never tied to the shooting and related state charges were dropped, federal prosecutors charged him under the statute because of his extensive criminal history, which included convictions for drug trafficking, firearm offenses, burglary, obstruction of justice, and unauthorized use of a motor vehicle.
Before pleading guilty, Squire argued the statute violated the Second Amendment as applied to him under the Supreme Court's decisions in New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi. He contended historical tradition protected his right to possess a firearm inside his home.
A three-judge Fifth Circuit panel rejected that argument in June, before Thomas' concurrence in Hemani, holding that Congress may constitutionally prohibit individuals convicted of dangerous crimes, including drug trafficking, from possessing firearms in their homes. The panel emphasized that its ruling was narrow and did not decide whether people convicted of non-dangerous offenses could be permanently disarmed.