The United States Court of Appeals for the Fifth Circuit has agreed to rehear the 922(g) case of United States v. Squire en banc, and the question the full court will decide is not whether the Second Amendment protects felons from gun prosecution. It is whether Congress ever had the constitutional authority to pass the federal felon-in-possession statute in the first place. That distinction matters enormously, and if the Fifth Circuit answers no, the consequences will reach far past one defendant in Louisiana. In fact, the ramifications of such a decision would extend far beyond the Second Amendment and even federal gun control laws.
A Structural Question, Not a Second Amendment One
Defendant Curtis Squire was convicted under 18 U.S.C. § 922(g)(1), the federal statute making it a crime for a convicted felon to possess a firearm. A three-judge panel of the Fifth Circuit affirmed that conviction on June 2, 2026. On July 20, 2026, the full active bench of the Fifth Circuit (which presides over Texas, Louisiana, and Mississippi) voted to rehear the case en banc. The legal question presented is whether Article I of the Constitution, and specifically the Commerce Clause, gave Congress the power to enact § 922(g)(1) at all.
This is a question of enumerated powers, not incorporation or individual rights. The federal government possesses only the powers granted to it by the people through the Constitution. Congress may have the raw power to enforce a statute, but power is not the same as legal authority. A kidnapper may have power over a victim but he would lack any lawful authority over the same victim. The same conceptual gap can exist between what Congress does and what the Constitution actually permits it to do. Congress may have the power to act, but whether it has the legal authority to act in a particular way may sometimes be a question for the courts.
Judge James Ho’s Warning in Seekins
The absurdity of an unbounded Commerce Clause has been flagged before. In United States v. Seekins, 52 F.4th 988 (5th Cir. 2022), the federal government prosecuted a homeless man (who had a felony record) for possessing two shotgun shells found in a dumpster. Judge James C. Ho, joined by Judges Smith and Engelhardt, dissented from the Fifth Circuit’s denial of rehearing en banc, writing:
“The US Constitution creates a federal government of enumerated powers… This enumeration ensures ‘a healthy balance of power between the States and the Federal Government [and] reduce[s] the risk of tyranny and abuse from either front.’ But now consider the facts presented in this case. The federal government seeks to incarcerate a homeless man (and previously convicted felon) for possessing two shotgun shells that he found in a dumpster. It’s hard to imagine a more local crime than this.”
That dissent did not carry the day in 2022. It may get a fuller hearing now.
Justice Clarence Thomas’s Solo Concurrence in U.S. v. Hemani
The trigger for Squire’s en banc grant traces to United States v. Hemani, 608 U.S. ___ (2026), decided June 18, 2026, in which the Supreme Court held 18 U.S.C. § 922(g)(3) unconstitutional as applied to respondent Ali Danial Hemani. Justice Thomas, concurring alone, wrote that § 922(g) as a whole “appears to exceed Congress’s enumerated power to regulate interstate commerce,” and that “Congress lacks the power to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.”
No other justice joined that concurrence. That is the caution I would sound here: a single justice flagging a question is an invitation to litigate, not necessarily a five-vote majority waiting to be collected. So, if the Fifth Circuit does rule that Congress lacked the authority under the U.S. Constitution to enact 18 U.S.C. § 922(g) or any related part thereof, then one wonders whether the U.S. Supreme Court would agree with that ruling.
Judge Higginson’s Dissent and the Stakes Ahead
Judge Stephen A. Higginson dissented from the en banc grant itself, warning that a Commerce Clause ruling against § 922(g)(1) “leaps beyond the felon in possession statutes, beyond federal criminal law, and beyond our authority as an inferior court,” threatening federal regulation of everything from explosives to endangered species. He is right that the stakes are large. Where we part ways is that I regard a shrunken federal police power as a return to constitutional first principles, not a catastrophe.
If the en banc Fifth Circuit strikes down § 922(g)(1) on Commerce Clause grounds, the case will almost certainly move to the Supreme Court quickly, and the real fight will be whether five justices are prepared to do what only Justice Thomas has so far been willing to say in writing. Given the current composition of the Court, I am not confident those five votes exist today. The Second Amendment movement’s task is to build toward that majority, not to force the question before it is there — because the wrong five-vote outcome would entrench the very statutes we hope to dismantle.
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.