A 5th Circuit case that casts doubt on the constitutionality of many federal statutes began with a brawl in New Orleans on a Thursday afternoon in February 2024.
asserted
that → cast → February
Police received a report about a shooting in the 3000 block of Law Street, where witnesses reported hearing dozens of gunshots during a fight that broke out near the Law Street Baptist Church.
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that → receive → Church
One of the bullets struck a woman's leg, and another woman was stabbed.
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woman → strike → leg
Two weeks later, police announced that they had arrested three people in connection with that incident, including Curtis Squire, who was charged with attempted second-degree murder.
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who → announce → murder
Local prosecutors dropped that charge after ballistic testing showed that the Glock pistol found in Squire's home did not match the gun fired during the melee on Law Street.
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pistol → drop → Street
But Squire, who had previously been convicted of heroin distribution, still faced a federal charge under 18 USC 922(g)(1), which criminalizes gun possession by people with felony records.
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which → convict → records
After Squire pleaded guilty to that charge while reserving his right to appeal, he was sentenced to more than four years in federal prison.
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he → plead → prison
Squire asked the U.S. Court of Appeals for the 5th Circuit to overturn his conviction, arguing that it violated the Second Amendment.
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it → ask → Amendment
After a three-judge panel rejected that argument last June, Squire asked the full court to reconsider his case, pressing a claim that goes far beyond the question of whether a drug trafficking conviction justifies stripping someone of his Second Amendment rights: Squire argues that Congress had no constitutional authority to enact Section 922(g)(1), which criminalizes purely intrastate, noncommercial conduct under the pretense of regulating interstate commerce.
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which → reject → commerce
If the 5th Circuit agrees with Squire on that point, Judge Stephen Higginson warned in July, when the appeals court agreed to rehear the case, it will "have massive import for federal law," undermining "much of the United States Code."
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it → agree → Code
Although Higginson was alarmed by that possibility, it would be welcome news for critics who complain that the Commerce Clause has become an all-purpose license to legislate, in defiance of the principle that the federal government's powers are limited to those explicitly granted by the Constitution.
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powers → alarm → Constitution
The Firearms Policy Coalition (FPC) explains why in a brief supporting Squire's appeal that it filed this week.
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it → explain → that
At the Founding, the brief notes, commerce "had a limited and distinct meaning: It referred to 'trade,' in the sense of 'selling, buying, and bartering, as well as transporting for these purposes."
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It → note → purposes
Although modern Commerce Clause jurisprudence has strayed far from that original understanding, the FPC argues, it still cannot support the thin constitutional reed that supposedly justifies Section 922(g)(1).
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that → stray → Section
That provision, which Congress enacted as part of the Gun Control Act in 1968, applies to anyone who has been convicted of a crime punishable by more than a year of incarceration.
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who → enact → incarceration
The original version made it a felony for such an individual to "receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
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which → make → commerce
Also in 1968, Congress approved a similar provision as part of the Omnibus Crime Control and Safe Streets Act.
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Congress → approve → Act
That one covered anyone convicted of "a felony" who "receives, possesses, or transports" a firearm "in commerce or affecting commerce."
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who → cover → commerce
But in the 1977 case Scarborough v. United States, the Supreme Court said "proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce."
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firearm → say → felon
As relevant to Squire's case, the Court was merely interpreting the statute.
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Court → interpret → statute
It did not pass judgment on whether the law was authorized by the Commerce Clause—a question that was not before it.
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that → pass → it
In 1986, the Firearms Owners' Protection Act eliminated the provision at issue in Scarborough and revised Section 922(g)(1).
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Act → eliminate → Section
The current version retains the original language about receiving a gun "shipped or transported in interstate or foreign commerce" but also covers firearm possession "in or affecting commerce."
Squire was convicted under the latter prong.
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Squire → retain → prong
As is typically the case, the only evidence that he possessed a gun "in or affecting commerce" was that the weapon had at some point crossed state lines.
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weapon → possess → lines
As the FPC notes, establishing that element is rarely difficult: "The government has proffered testimony that 95% of all guns in the United States have crossed state lines."
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% → note → lines
In other words, the constitutional rationale for making a federal case out of the pistol found in Squire's living room is barely more demanding than requiring proof that the gun was made of metal.
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gun → make → metal
Can that possibly suffice to treat Section 922(g)(1) as an exercise of the power to regulate interstate commerce?
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that → suffice → commerce
The FPC thinks not.
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FPC → think → ?
"Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon," it says, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.
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that → lack → crime
In the 1995 case United States v. Lopez, the Supreme Court ruled that Congress had exceeded its Commerce Clause authority when it passed the Gun-Free School Zones Act of 1990, which made it a felony to possess a firearm within 1,000 feet of a school.
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it → rule → school
"The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce," Chief Justice William Rehnquist noted in the majority opinion.
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Rehnquist → regulate → opinion
"If we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."
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Congress → accept → power
Rehnquist also noted that the law "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce."
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possession → note → commerce
Concurring in Lopez, Justice Clarence Thomas agreed that Congress had clearly overstepped its authority.
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Congress → concur → authority
"The power to regulate 'commerce,'" he said, "can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States."
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it → regulate → States
Congress responded to Lopez by amending the Gun-Free School Zones Act to specify that it applied only to "a firearm that has moved in or that otherwise affects interstate or foreign commerce."
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that → respond → commerce
Although federal appeals courts implausibly concluded that Congress had fixed the problem identified by Rehnquist, the Supreme Court has not revisited the law.
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Court → conclude → law
Five years after Lopez, the Supreme Court ruled that the Commerce Clause could not justify a provision of the Violence Against Women Act that established a federal cause of action for victims of gender-motivated violence.
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that → rule → violence
"We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims," Rehnquist wrote in United States v. Morrison.
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Rehnquist → think → Morrison
The Court rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.
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Congress → reject → commerce
…and 32 more, not listed.
The Aporia
