On September 14, the Fifth Circuit granted rehearing en banc in United States v. Cordova, a Second Amendment challenge to the lifetime felon gun ban, 18 U.S.C. § 922(g)(1).
asserted
Circuit → grant → ban
That follows the July 20 en banc rehearing grant in United States v. Squire, a challenge to the same prohibition under the Commerce Clause.
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That → follow → Clause
These cases test whether Congress had the power in the first place, and even if so, is it prohibited from doing so?
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it → test → place
As I posted previously, Squire posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation."
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Amendment → post → regulation
As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…."
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tradition → write → dangerousness
That issue together with Squire's Commerce Clause challenge were held to be foreclosed by circuit precedent.
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issue → hold → precedent
Section 922(g)(1) includes as an element of the offense that the person did "possess [a firearm] in or affecting commerce," or did receive a firearm "which has been shipped or transported in interstate or foreign commerce."
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which → include → commerce
Unsuccessful attempts to rein in Congress on the Commerce Clause included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus.
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who → rein → nexus
Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.
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Clement → base → dissent
Squire's petition for rehearing en banc is limited to whether the gun ban is within the scope of the Commerce Clause.
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ban → rehear → Clause
Beginning with U.S. v. Lopez (1995), he argues, the Supreme Court has held that "while the Commerce Clause permits regulation of economic activities that substantially affect interstate commerce, it does not authorize plenary federal regulation of noneconomic activity, including mere firearm possession."
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it → begin → possession
When the petition was granted, Judge Stephen A. Higginson wrote a dissent, stating: "In the context of § 922 convictions alone, such a holding would raise several immediate questions.
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holding → grant → questions
Can felons from the other eleven circuits now flood the Gulf Coast to rearm themselves? …
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felons → flood → themselves
More broadly, what would come of the countless other federal statutes hinging on Congress's well-settled commerce authority?"
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what → come → authority
Turning to the Cordova case, the per curiam opinion noted felony convictions for drug possession, which doesn't necessarily count anymore, and for evading arrest with a motor vehicle.
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which → turn → vehicle
The Second Amendment challenge was easily rejected: "Given that 'vehicular pursuits' are 'often catastrophic,' Cordova's decision to use a car to evade the police is probative of his dangerousness….
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decision → reject → dangerousness
Cordova's decisions posed a risk to his fellow citizens and demonstrate that he poses a credible threat to the physical safety of others."
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he → pose → others
But two judges on the panel only concurred in the judgment.
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judges → concur → judgment
Judge James C. Ho set the tone for his concurrence by beginning: "The right to keep and bear arms under the Second Amendment is a fundamental civil right, comparable to other provisions of the Bill of Rights."
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right → set → Rights
The felon gun ban "imposes a lifetime ban on the possession of a firearm.
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ban → impose → firearm
And it does so even if the person has never been sentenced to serve a single day in prison."
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person → do → prison
Cordova himself was not sentenced to serve a single day in prison.
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Cordova → sentence → prison
The Supreme Court in Rahimi held only that "[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment."
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individual → hold → Amendment
Concurring, Justice Gorsuch noted that "[w]e do not resolve whether the government may disarm an individual permanently."
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government → concur → individual
Judge Ho concluded by repeating that the ban "disarms individuals for the rest of their lives, regardless of whether the individual has been convicted of a violent crime or spent a single day in prison," but that "this case does not present a challenge to lifetime disarmament under § 922(g)(1)."
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case → conclude → §
Also concurring in the judgment, Judge Andrew S. Oldham also set the tone with his opening line: "The Second Amendment reflects a fundamental, God-given right that long predates our Nation's Founding…."
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that → concur → Founding
Characterizing Fifth Circuit precedent based on U.S. v. Diaz (2024) as "historically bankrupt," he colorfully wrote: "Rather than join the White Rabbit for another journey into our circuit's § 922(g)(1) Wonderland, it is time to say enough is enough.
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enough → characterize → Wonderland
Diaz must go."
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Diaz → go → ?
He criticized Diaz for asking whether an offense was punishable by death at the founding, which has never been a basis for depriving a convicted person of constitutional rights, and for relying on two losing arguments at the origin of the Constitution (you have to go to Diaz to find them – the Dissent of the Minority in Pennsylvania (1787) and Samuel Adams' failed proposal for an arms guarantee in the Massachusetts convention (1788)).
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you → criticize → convention
Most of Judge Oldham's opinion is a history of how the right to keep and bear arms came to be.
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right → keep → arms
But regardless of the justifications given for depriving specified groups of arms, "all agreed that the legality of disarming seventeenth-century Englishmen turned on dangerousness."
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legality → give → dangerousness
Judge Oldham concludes:
As this process shows, evaluating a defendant's as-applied challenge to § 922(g)(1) requires historical analysis.
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evaluating → conclude → analysis
It requires looking beyond an individual predicate conviction.
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It → require → conviction
It requires looking at whether an individual is dangerous.
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individual → require → ?
That study coheres with the long English and American history of disarming dangerous people.
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study → cohere → people
Cordova's criminal history and characteristics demonstrate that he is dangerous.
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he → demonstrate → ?
I would rely on that dangerousness analysis, not Diaz's nonsensical legal standard, to hold that Cordova's constitutional challenge fails.
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challenge → rely → analysis
All of that said, the Fifth Circuit granted Cordova's petition for rehearing en banc.
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Circuit → say → rehearing
The Aporia
