Curtis Squire kept a handgun in his New Orleans home. Police found it while executing a search warrant tied to a shooting he wasn’t charged with. He had prior convictions for heroin trafficking and burglary, which made the gun itself a federal crime under 18 U.S.C. § 922(g)(1), the felon-in-possession statute. A 5th Circuit panel upheld his conviction in June, rejecting his Second Amendment claim on the theory that history supports disarming drug traffickers because they’re dangerous. That should have been the end of it.
It wasn’t. On July 20, the full 5th Circuit voted to rehear the case en banc, and Squire’s lawyers switched arguments entirely. They dropped the Second Amendment and went after something more foundational: the commerce clause. Their claim is that Congress never had the constitutional authority to make simple gun possession a federal crime in the first place, because a handgun sitting in a Louisiana living room isn’t interstate commerce. It’s just a gun in a house.
That question matters more than the defendant does. Under current doctrine, the government satisfies section 922(g)’s commerce element by showing that a firearm or a round of ammunition crossed a state line at some point in its existence, ever, by anyone, for any reason. The felon doesn’t have to move it. No sales have occurred. A gun manufactured in Connecticut and sold in Louisiana 30 years before the defendant touched it counts. Since virtually every firearm in the United States crosses a state line at some point in its supply chain, this reading turns a statute about commerce into a statute about possession, full stop. The 5th Circuit’s own precedent, following the Supreme Court’s 1977 decision in Scarborough v. United States, locked that interpretation in before the court ever developed a serious outer limit on the commerce clause.
That limit arrived in 1995. United States v. Lopez struck down the Gun-Free School Zones Act because carrying a gun near a school isn’t an economic activity, and letting Congress regulate it under the commerce clause would erase any meaningful boundary on federal power. Five years later, United States v. Morrison applied the same logic to strike part of the Violence Against Women Act. Congress can reach economic activity that substantially affects interstate commerce. It can’t reach ordinary criminal conduct just because the object involved was once moved somewhere.
Squire’s case forces the 5th Circuit to decide whether Scarborough survives that line of reasoning, and the court didn’t take this up quietly. Judge Stephen Higginson dissented from the rehearing grant, warning that the majority has “welcomed the possibility” of ruling that Congress’s commerce clause power can’t sustain section 922(g) at all. He’s right about the stakes. He’s wrong that the stakes are a reason to look away. The felon-in-possession statute has operated for decades as a national gun law resting on a jurisdictional hook so thin it barely qualifies as one. Justice Clarence Thomas gave that argument fresh legs this year in a concurrence questioning whether section 922(g)’s provisions exceed Congress’s enumerated powers, and the 5th Circuit appears ready to test it directly.
SUPREME COURT FINALLY TAKES ON THE RIFLE BANS
The Tenth Amendment isn’t decorative. It’s the default setting. Powers not delegated to the federal government are reserved to the states, and general police power over crime has always sat with the states, not Washington. If the 5th Circuit narrows section 922(g)’s reach, prosecutors will still have plenty of tools. States prosecute felon-in-possession cases every day. What they’ll lose is the ability to federalize every one of them on the strength of a fact about the gun’s manufacturing history rather than anything the defendant actually did.
Squire has an ugly record, and nobody should mistake this case for a sympathetic test vehicle. That’s beside the point. The Constitution grants Congress specific, enumerated powers, not a general license to police U.S. life wherever a plausible commercial thread can be found. If the full 5th Circuit takes that principle seriously, this case is headed for the Supreme Court, and Scarborough won’t survive a serious encounter with Lopez. It’s overdue.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.