Major news out of the U.S. Court of Appeals for the Fifth Circuit, and it arrives with a counterintuitive lesson: a technical Second Amendment loss can be a strategic Second Amendment win. In United States v. Squire, No. 25-30324 (5th Cir. June 2, 2026), the court held that a convicted drug trafficker has no Second Amendment right to possess firearms under 18 U.S.C. § 922(g)(1), even inside his own home. The defendant, Curtis Squire, argued that no historical tradition supported disarming drug traffickers. The panel disagreed. I believe it reached the right result, and I am glad it did — because the alternative would have damaged the cases that matter.
What the Fifth Circuit Held
Squire had been convicted of crimes arising from heroin trafficking. When he was later found in possession of firearms, the government charged him under § 922(g)(1), the felon-in-possession prohibition. His defense rested on the claim that the founding generation never disarmed people like him, and that the Supreme Court’s dangerousness framework therefore did not reach him.
Senior Judge Edith Brown Clement, writing for the panel, rejected that argument. As the court framed it, “our historical tradition supports disarming drug traffickers based on their dangerousness,” and § 922(g)(1) “as applied to drug traffickers permits arms dispossession based on dangerousness, not location.” Squire’s claim that his home was a constitutional sanctuary was, in the court’s words, “mugged by the reality that our historical laws support his disarmament, even in the special confines of his home.”
Judge Clement, confirmed to the Fifth Circuit in 2001 and on the 2005 Supreme Court shortlist before the seat went to Justice Alito, wrote a narrow opinion that expressly reserved harder questions. The court declined to decide “whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order.” That restraint matters.
Why Drug Trafficking Is Dangerousness
The doctrinal anchor here is United States v. Rahimi, 602 U.S. 680 (2024), where the Supreme Court held 8-1, in an opinion by Chief Justice Roberts, that an individual found by a court to pose a credible physical threat to others may be temporarily disarmed consistent with historical tradition. The question in Squire was whether a drug-trafficking conviction supplies that finding of dangerousness. In my view, it plainly does, and for two independent reasons.
First, the trafficker distributes lethal poison. Selling heroin, cocaine, or methamphetamine puts deadly substances into the hands of others — a physical danger to everyone who receives them. Second, the trafficking business runs on violence. A drug dealer cannot sue to collect an unpaid debt or recover stolen product; the enterprise is unenforceable through lawful means. The only mechanisms left are threats and acts of physical violence. A trafficking conviction therefore carries an inherent finding of danger to others that fits Rahimi squarely.
I have one reservation about the methodology. Judge Clement reached the correct answer, but she leaned on historical analogues — disarmament laws aimed at disfavored groups — that strike me as ahistorical and the kind of authority a serious court should avoid. A clean dangerousness analysis did not require them, and I doubt those analogues will find favor at the Supreme Court. On these facts, no harm came of it, but it is not the path I would have charted.
The Cert Slot We Just Protected
Here is the strategic point. The worst thing the Second Amendment community can do right now is feed terrible fact patterns to the Supreme Court. Had the Fifth Circuit ruled the other way — had it held that a convicted heroin trafficker enjoys a constitutional right to arms in his home — the Solicitor General, D. John Sauer, would almost certainly have sought certiorari. The Court would almost certainly have granted it. And a Second Amendment slot in the October Term 2026 would have been consumed by a case the gun-rights side would lose, producing bad precedent and helping no law-abiding gun owner.
This is not pessimism; it is arithmetic about the Court as currently constituted. There are not five votes to declare that convicted drug traffickers cannot be disarmed, just as there are not five votes today to hold that machine guns are protected arms. I do not endorse that as the correct reading of the Second Amendment — I am describing the count. A cert grant is a scarce resource, and every slot spent on a doomed criminal-defendant case is a slot not spent on the cases that move the law.
The Cases We Actually Want
The historical record points the way. The Second Amendment movement wins when it challenges outlier state laws, not when it defends criminals against federal statutes. District of Columbia v. Heller, 554 U.S. 570 (2008), struck a local handgun ban. McDonald v. City of Chicago, 561 U.S. 742 (2010), struck Chicago’s. Caetano v. Massachusetts, 577 U.S. 411 (2016), vacated a stun-gun conviction under a Massachusetts ban. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), struck New York’s licensing regime. Each involved a state outlier and a sympathetic claimant.
That is why I want the Court spending its docket on cases like Wolford v. Lopez, No. 24-1046, argued January 20, 2026 — the challenge to Hawaii’s presumptive bar on carry across private property open to the public, the so-called default-no-carry rule. United States v. Hemani, No. 24-1234, argued March 2, 2026, presents the separate § 922(g)(3) question of the unlawful drug user — a category I regard as genuinely distinct from the convicted trafficker in Squire.
So yes, we lost in the Fifth Circuit. We also dodged a bullet. Sometimes losing a battle is exactly how you win the war.
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.