Fifth Circuit to Go En Banc to Review Constitutionality of 922(g)(1) Under Commerce Clause
On Monday, July 20, the U.S. Court of Appeals for the Fifth Circuit voted to go en banc to review the constitutionality of 18 U.S.C. § 922(g)(1)—the felon-in-possession prohibitor—under the Commerce Clause. The case could potentially have major ramifications for federal gun law. So far, the only successful appellate constitutional challenges to (g)(1) have been narrow, as-applied wins. Given the Fifth Circuit’s record in Second Amendment cases—and the fact that the en banc seems at least partially responsive to an invitation issued by Justice Thomas in Hemani—the case is worth watching closely.
Panel Opinion
On June 2, a panel comprised of Judges Clement, Southwick and Engelhardt issued a unanimous opinion in United States v. Squire holding that 922(g)(1) is constitutional under the Second Amendment as applied to a person with drug trafficking convictions. In prior decisions, the Fifth Circuit has held that at least as applied to some felons, § 922(g)(1) might not pass scrutiny under Bruen. In Diaz, the Fifth Circuit wrote, “[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny,” in part because “not all felons today would have been considered felons at the Founding.” But because Diaz had been convicted of theft, which “was a felony and thus would have led to capital punishment or estate forfeiture” his conviction under § 922(g)(1) was constitutional.
Here, Squire argued that 922(g)(1) was unconstitutional as-applied to him because it interfered with his right to possess a firearm in his home for self-defense. The panel noted, explaining Squire’s position:
The essence of his argument is that disarming a person inside his home is antithetical to our historical tradition, which Squire says protects, rather than prohibits, arms possession inside the home. His theory is that the “ancient right” of self-defense, which derives from natural law, has special legal status in English common law and American law, most notably in the “castle doctrine.”
The Court explained that, based on circuit precedent, felons are “unequivocally” part of “the People” covered by the Second Amendment. Interestingly, the Court does not quote language from Heller or Wolford, which explain that “the people” are “all members of the political community.” Of course, under most states’ laws, felons are disenfranchised and therefore not members of the political community.
The court then analyzed whether Squire’s predicate convictions for drug trafficking fall within the history and tradition of firearms regulation. Defendant argues that “the history of regulations on keeping arms (as distinguished from regulations on carrying) is scarce,” and that even those historical laws which made class-based restrictions (e.g., against Catholics), “provided an exception for keeping necessary arms for self-defense.”
The panel affirmed that Congress may enact class-based restrictions, but emphasized that courts “must not grant blanket deference” to legislators’ policy choices. “Complete deference to legislative line-drawing for class-based dangerousness distinctions would undermine our role, allowing Congress to ‘define away a fundamental right.’” Nevertheless, the court explained, historical tradition of firearms regulation permits Congress to constitutionally disarm dangerous classes of people.
In this case, the government drew on the history of disarming people deemed to be dangerous to the state—that is, British loyalists and religious minorities. According to the Fifth Circuit, non-violent marijuana users cannot be disarmed consistent with that historical tradition because “there was no historical evidence that such a user was ‘dangerous’ for reasons comparable to political dissidents or religious minorities.” By contrast, drug traffickers can be disarmed consistent with history and tradition because of the “intrinsic violence of the drug trade.”
Ultimately, the court concluded that Squire’s home-specific argument was without merit because historical restrictions imposed on “dangerous” people were not limited to public carry. In so holding, the court relied on 1700s laws disarming Native Americans, Blacks, and mixed-race people. It is interesting that the Fifth Circuit relied on those laws, considering Wolford’s rebuke of Black Code laws from the Reconstruction Era. There, the Supreme Court indicated that “tainted artifacts” such as Louisiana’s disarmament of Black people cannot serve as a valid historical analogue. In Squire, however, the Fifth Circuit found: “Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament.”
The Fifth Circuit ended by noting that its “holding is narrow,” concluding “only that § 922(g)(1), as applied to a convicted drug trafficker possessing a firearm inside his home, is consistent with this Nation’s historical tradition of firearm regulation under Bruen.”
The court dispensed with the other challenges in a footnote, writing that Squire’s facial challenges under the Second Amendment and the Commerce Clause were foreclosed by prior circuit precedent. In 2013, the Fifth Circuit had reaffirmed a 1989 decision that 922(g)(1) is constitutional under Congress’s Commerce Clause authority. There, the Fifth Circuit joined the First Circuit in holding that “the words ‘affecting commerce’ are jurisdictional words of art, typically signalling [sic] a congressional intent to exercise its Commerce Clause power broadly, perhaps as far as the Constitution permits.” The court concluded that based on that jurisdictional statement, § 922(g)(1) “reaches only those firearms that traveled in interstate or foreign commerce and is thus constitutional.”
En Banc Review
Defendant’s petition for en banc review, filed just days after the Supreme Court’s decision in United States v. Hemani striking down § 922(g)(3) as applied to Mr. Hemani, focuses exclusively on the Commerce Clause challenge—highlighting Justice Thomas’s solo concurrence in that case. Defendant framed that “issue meriting en banc consideration” as “[w]hether this Court’s holding that 18 U.S.C. § 922(g)(1) constitutes a valid exercise of congressional authority under the Commerce Clause conflicts with the Supreme Court’s decision in Lopez, which sets strict limits on Congress’s commerce power.”
Judge Higginson dissented from the order granting rehearing en banc. He wrote,
Just a few weeks ago, Justice Thomas, writing alone, asked lower courts to reexamine the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause. Already, our court answers the call. Today, we grant a petition for rehearing in what was a Second Amendment as-applied challenge to § 922(g)(1), now reframed as a facial Commerce Clause challenge. So, rather than clarifying our § 922(g)(1) as-applied precedent to provide fair notice to people in Louisiana, Mississippi, and Texas about whether they can lawfully own guns, we imperil much of the United States Code.
He explained further that 922(g)(1) falls within Congress’s authority to regulate interstate commerce because it “has a textual interstate commerce nexus.” Specifically, § 922(g) “prohibit[s] the transport of any firearms or ammunition ‘in interstate or foreign commerce,’ [the] possession of any firearms or ammunition ‘in or affecting commerce,’ and [the] reception of ‘any firearm or ammunition’ transported ‘in interstate or foreign commerce’ by certain groups of individuals.” Quoting United States v. Lopez, he explained that Congress can exercise its regulatory authority under the Commerce Clause to: “regulate the use of the channels of interstate commerce”; (2) “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) regulate “activities that substantially affect interstate commerce.” Notably, every other circuit has found § 922(g) to be a constitutional exercise of Commerce Clause authority.
Implications
As Judge Higginson noted, the litigation implications are enormous: “Can felons from the other eleven circuits now flood the Gulf Coast to rearm themselves? Can—or must—all § 922(g) defendants in this Circuit now individually challenge their convictions on these grounds? What is the retroactive effect, if any, of this decision for the people in our Circuit already convicted under this statute?”
If § 922(g)(1), the felon-in-possession prohibitor, is an unconstitutional exercise of Congress’s power to regulate interstate commerce, the other provisions are likely to fall as well. These include laws prohibiting possession by fugitives from justice, persons under federal indictment, “aliens” unlawfully present in the U.S., unlawful users of or persons addicted to any controlled substance, anyone who’s been adjudicated to be a “mental defective,” persons discharged from the Armed Forces under dishonorable conditions, former U.S. citizens who renounced their citizenship, domestic violence misdemeanants, and people subject to domestic violence restraining orders. Each shares the same statutory hook for the interstate commerce element: the government must show that the firearm at issue traveled in interstate commerce. Under defendant’s theory, it’s hard to see how any of the other person-based prohibitors fare any better than (g)(1), considering the interstate nexus is the same for each of them. If § 922(g)(1) falls, the remaining person-based prohibitors are likely to follow.
And the implications of this commerce clause theory extend beyond Section 922(g) as well. It could upend the entirety of the prevailing commerce clause doctrine, particularly if the Court adopts a 1787 approach to “commerce”. Furthermore, enormous swaths of the U.S. Code that regulate things traveling in or conduct affecting interstate commerce may not withstand a new, more restrictive test like the one Justice Thomas seems to be advocating for.
That said, it seems unlikely that the Supreme Court would agree with this interpretation of the Commerce Clause in the near future. Only Justice Thomas wrote in Hemani to question the future of 922(g)(1) under the commerce power. No other Justice joined in his concurrence.
In short, if the Fifth Circuit agrees with the defendant that § 922(g)(1) exceeds Congress’s Commerce Clause authority, this would have enormous implications for federal firearms law. No other Justice joined Justice Thomas’s concurrence in Hemani to that effect. But then again, he was also the only Justice who would have upheld the Fifth Circuit’s decision in Rahimi, so this one will be worth watching closely.