A federal appeals court will examine whether a federal law barring felons from possessing firearms exceeds the federal government’s authority under the commerce clause of the Constitution, taking up the case a month after Justice Clarence Thomas asked lower courts to explore the issue.
The full U.S. Court of Appeals for the Fifth Circuit will hear a constitutional challenge to the federal statute, tossing out a ruling from a three-judge panel on the appeals court that had sided with federal prosecutors who charged Curtis Squire, a convicted drug trafficker, with violating the law. The three-judge panel had upheld the law under the Second Amendment, but when asking the full panel to look at the case, Squire’s lawyers pressed the appeals court to focus specifically on whether the law is an overreach under the commerce clause.
“In a series of cases beginning with United States v. Lopez, the Supreme Court made clear that while the Commerce Clause permits regulation of economic activities that substantially affect interstate commerce, it does not authorize plenary federal regulation of noneconomic conduct, including mere firearm possession,” Squire’s lawyers wrote in the petition to the full Fifth Circuit. “As the Court explained, such limits on the commerce power are necessary to protect federalism and to prevent the federal government from exercising a general police power, which is strictly reserved for the States.
“This Court’s § 922(g)(1) precedent, however, ignores Lopez and, in doing so, impermissibly expands the federal government’s ability to regulate noneconomic conduct far beyond what the Commerce Clause permits,” Squire’s lawyers wrote.
The decision to rehear the case drew only one notable dissent, by U.S. Circuit Judge Stephen Higginson, an appointee of former President Barack Obama. Higginson warned of the grave consequences that could arise if the full appeals court decides to find Section 922 convictions unlawful under the commerce clause.
“That impact is hard to overstate,” Higginson wrote. “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,” he added.
In the Supreme Court’s June ruling in United States v. Hemani, the justices decided 9-0 that the Justice Department’s prosecution of a marijuana user under a different part of Section 922(g), which barred unlawful drug users from owning firearms, was unconstitutional under the Second Amendment. Thomas penned a solo concurring opinion, also noting that the federal statute “appears to exceed Congress’s enumerated power to regulate interstate commerce.
“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,'” Thomas wrote.
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“Such an understanding would ‘convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States,'” he wrote. “So, while the issue was not presented in this case, the Court, and lower courts, should revisit the constitutionality of §922(g).”
The Fifth Circuit has yet to schedule oral arguments for the rehearing, but whichever way the full appeals court rules, the case will likely be appealed to the Supreme Court.
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[ H/T Washington Examiner ]
