Two recent Fifth Circuit opinions out of New Orleans deserve your full attention, and not just because they touch the Second Amendment. Judge Don R. Willett is using his concurrences in United States v. Wilson, No. 24-10633 (5th Cir. Jan. 12, 2026), and United States v. Hembree, No. 24-60436 (5th Cir. Jan. 27, 2026), to press a question that reaches far beyond either case: has Congress exceeded its authority under Article I of the Constitution — and if so, what are we going to do about it?
This is a question I have been hammering on this channel for years. Protecting the right to keep and bear arms is not just a Second Amendment fight. It is a structural-constitution fight. You cannot fully win the former without winning the latter.
What the Two Cases Are About
Wilson involves 18 U.S.C. § 922(o) — the Hughes Amendment, enacted as part of the Firearm Owners Protection Act of 1986 — which bans civilian transfer or possession of any machinegun manufactured after May 19, 1986. The Fifth Circuit panel upheld the ban on Second Amendment grounds. Willett joined the majority but wrote separately to flag a different question: did Congress have enumerated-powers authority under Article I to enact this ban in the first place?
Hembree involves 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute. There, the panel actually struck down the statute as applied to Charles Hembree, whose predicate “felony” was a 2018 Mississippi conviction for simple possession of methamphetamine. Judge Willett concurred, noting that where “the enumerated-powers belt slips… the Second Amendment suspenders hold, at least for Hembree” — and signaling openness to reconsidering whether § 922(g)(1) falls within Congress’s enumerated powers at all.
Two different federal gun laws. One judge asking the same foundational question in both.
The Structural Constitution: Belts and Suspenders
Here is the critical distinction I want you to carry around: power and authority are not the same thing. A kidnapper has power over his victim. He does not have authority over his victim. The correct constitutional question is never whether Congress can act — it is whether Congress has the legal authority to act. That authority begins and ends with Article I’s enumerated powers.
Judge Willett put it this way in Wilson:
The Constitution’s enduring genius lies less in its promises than in its design. As Justice Scalia once reminded a Senate committee, “Even the most oppressive regimes profess liberty, but only a government of divided powers can give life to parchment guarantees.” That design — the Constitution’s Madisonian architecture of separated powers, divided sovereignty, and enumerated authority — was shrewdly crafted to constrain government even as it empowers it… And nowhere is fidelity to that design more vital than in the criminal sphere where the consequences of unbounded power are most acute and where federal authority must both begin and end with enumerated power.
That is exactly right, and it is a point Justice Antonin Scalia made eruditely before the Senate Judiciary Committee years ago — the same testimony Willett cites. Scalia’s argument was simple and devastating: every banana republic on earth has a bill of rights. The Soviet Union’s bill of rights was, on paper, better than ours. What made America different was never the list of rights. It was the structure — separated powers, divided sovereignty, a federal government of enumerated authority that could not, in theory, consolidate power in one place.
The Federalist Bargain and the Belt-and-Suspenders Constitution
This brings us to history. When the original Constitution was proposed in 1787, the Anti-Federalists pushed back hard. They were nervous about a powerful central government and demanded a bill of rights. The Federalists — Madison, Hamilton, Jay — argued that a bill of rights was unnecessary because the federal government only had enumerated powers and therefore had no authority over speech, arms, or religion in the first place.
The compromise produced what I call the belt-and-suspenders constitution. Belt: a federal government limited to enumerated powers. Suspenders: a Bill of Rights as an added layer of protection. As Patrick Henry put it at the Virginia Ratifying Convention in June 1788, with characteristic bluntness: “Our rights are reserved. Why not say so? Is it because it will consume too much paper?”
Judge Willett quotes that exchange directly and draws the obvious implication: when Congress stretches its enumerated powers beyond their seams — as it has been doing for decades — the people need both layers to hold.
Why This Matters for the Second Amendment Right Now
I don’t want your eyes to glaze over when you see cases about the Commerce Clause or administrative agency overreach or the Chevron doctrine (which the Supreme Court correctly buried in Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024)). All of those fights are Second Amendment fights. They are all fights about whether the structural constitution still means what it says.
Willett’s concurrences are significant because he is not a fringe voice. He is a well-respected Article III judge whom the Supreme Court and future en banc panels will have to engage. Judge James C. Ho filed a dubitante concurrence in Wilson — formally declining to endorse the majority’s reasoning — and echoed Willett’s Commerce Clause concerns while urging en banc review. That is two Fifth Circuit judges publicly questioning the enumerated-powers foundation of federal gun laws.
The argument, if it gains traction, is potentially transformative: if Congress lacked Article I authority to enact § 922(o) or § 922(g)(1), those statutes fall without the Second Amendment needing to do any work at all. The belt holds. The suspenders never even get tested.
We are not there yet. But Willett is planting a flag that others can rally to — and in my view, he is absolutely right to do it.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.