A little-known case percolating in the Fifth Circuit Court of Appeals could end up having a major impact on many federal laws that depend on the Constitution's Commerce Clause for their existence. The appellate court granted an en banc review to the case, known as U.S. v. Squires, over the objection of Judge Stephen A. Higginson, who warned that the Fifth Circuit's decision could "imperil much of federal code" if the judges follow the lead of Justice Clarence Thomas.
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.
Thomas wrote a concurring opinion in the recently decided Hemani case arguing that "a matter of both original meaning and this Court’s precedents, §922(g)(3) appears to exceed Congress’s enumerated power to regulate interstate commerce."
The statute makes it a federal crime for unlawful drug users to possess any firearm or ammunition “in or affecting commerce.” 18 U. S. C. §922(g)(3). Under the prevailing interpretation of §922(g)(3), the Government can secure a conviction for unlawful firearm possession “if the firearm possessed” by the drug user “had previously traveled in interstate commerce.” The Commerce Clause does not authorize Congress to “regulate or ban possession of any item that has ever been offered for sale or crossed state lines.” Such an understanding would “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” So, while the issue was not presented in this case, the Court, and lower courts, should revisit the constitutionality of §922(g).
It sounds like SCOTUS will soon have the chance to do so.
At issue here is the scope of the Commerce Clause, which has been read expansively in the past to justify sweeping powers assumed by the federal government. As Thomas wrote, Congress has the power to “regulate Commerce . . . among the several States.” It does not, in his view, grant Congress the authority to regulate “activities wholly separated from business, such as gun possession.”
Because §922(g) criminalizes possession of firearms apart from any purchase or sale of goods and services across state lines, I doubt that it could be an exercise of Congress’s Commerce Clause powers as an original matter.
Note that Thomas believes that none of Section 922(g) is valid exercise of Congress's Commerce Clause powers. That would include Section 922(g)(1)'s prohibition on gun possession for those convicted of felonies or crimes punishable by more than one year in prison as well as other prohibitions on gun possession by fugitives from justice, unlawful drug users, illegal aliens, those adjudicated as mentally ill, dishonorably discharged members of the military, and those convicted of domestic violence misdemeanors (among other prohibited persons).
In his concurring opinion in Hemani, Thomas wrote that 922(g) "it seems, also 'cannot be reconciled' with this Court’s modern Commerce Clause doctrine."
Under that doctrine, §922(g) must fall within one of three categories to be constitutional: It must either regulate “the use of the channels of interstate commerce,” “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce,” or regulate “activities that substantially affect interstate commerce.”
Section 922(g) does not seem to fall within either of the first two categories. It does not, as far as I can tell, regulate the “use of the channels of interstate commerce” because it criminalizes possession of a firearm within a State long after any use of those channels. Nor does it “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce” because it requires no showing that the possession in question poses any risk to interstate buying, selling, shipping, or transportation.
I also doubt that §922(g) can fall within the third and broadest category for regulations of “activities that substantially affect interstate commerce.” The mere possession of a firearm that long ago crossed state lines is not “economic activity” in any sense, and the Court has never upheld regulation of intrastate activity that is not “economic in nature” under this category. Moreover, our precedents suggest that merely possessing a gun does not have a “substantial effect” on interstate commerce. Section 922(g) targets classes of people that the Government thinks “threaten the safety of the community” if they have weapons. But, the Court has emphatically rejected “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Accordingly, in Lopez, the Court concluded that “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Like the gun-possession statute at issue in Lopez, §922(g) is not a regulation of economic activity, but a law to combat “crime and violence,” even at the local level.
Of all the appellate courts, the Fifth Circuit seems like the one most likely to adopt Thomas's view of a constrained Commerce Clause, which helps to explain why Judge Higginson is so freaked out by the prospect of the "start of a new, severely contracted Commerce Clause era."
In the context of § 922 convictions alone, such a holding would raise several immediate questions. 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?
More broadly, what would come of the countless other federal statutes hinging on Congress’s well-settled commerce authority? Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons? 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. What was a Second Amendment as-applied challenge to § 922(g)(1)—where we have studiously avoided taking an inter-circuit split and our own intra-Circuit split en banc—now leaps beyond the felon-in-possession statutes, beyond federal criminal law, and beyond our authority as an inferior court.
As much as I would love to see the expansive power of the federal government scaled back to what the Constitution actually grants it, I don't think Higginson has much to worry about. The Fifth Circuit might very well adopt Thomas's point of view on the Commerce Clause, but I doubt that he has four colleagues on the Court who would agree. No one joined in his Hemani concurrence, which is not a good sign for his argument winning out. If the Fifth Circuit follows Thomas's lead I expect SCOTUS would grant cert to Squires and overturn the appellate court decision on anywhere from a 5-4 to an 8-1 decision.
At the very least, though, we're going to get substantive arguments about the scope of the federal government's power in the Fifth Circuit, and I think that is very much an argument worth having. Those of us who believe in small government should be excited about the Fifth Circuit's decision to take Squires en banc. I'd just caution against getting your hopes up if and when the Supreme Court gets ahold of the case.
