Felon Gun Possession Bans, the Commerce Clause, and the Second Amendment

In U.S. v. Williamson, Fifth Circuit Judges Jacques Wiener, Don Willett, and Cory Wilson followed Fifth Circuit precedent in holding that the federal ban on gun possession by a felon was constitutional. But Judge Willett, joined by Judge Wilson, added this concurrence:

I remain doubtful that our precedent rejecting enumerated-powers challenges to § 922(g)(1) was correctly decided. As a threshold matter, “Congress has no power to enact a comprehensive criminal code, … § 922[(g)], like every other federal statute, must be based on one or more of Congress’s powers enumerated in the Constitution.” The Interstate Commerce Clause is a “natural first place to look.” But the Clause’s original meaning—adherence to which is “[t]he first and most important rule in constitutional interpretation” —does not support § 922(g)(1).

Consider the ratification debates. How could the Federalists have assured skeptics that Congress lacked power to infringe individual rights —including the right to “keep … Arms”—if the mere exercise of that right were itself enough to trigger federal power? If mere possession sufficed, the Commerce Clause would quietly—but completely—confer the very general police power the Constitution withholds from Congress.

To be sure, the Supreme Court has embraced an “expansive interpretation of the commerce power.” But even that understanding extends only to “three general categories of regulation”—none of which includes “[m]ere possession of a firearm.” [The concurrence cited Gonzales v. Raich (2005), which listed the "three general categories" as "regulat[ing] the channels of interstate commerce,” “regulat[ing] and protect[ing] the instrumentalities of interstate commerce, and persons or things in interstate commerce,” and “regulat[ing] activities that substantially affect interstate commerce. -EV] For that reason, I remain open to reconsidering our precedent insulating § 922(g)(1) from enumerated-powers challenges.

I also have doubts about whether [our circuit precedent] fully accords with the framework we articulated in United States v. Diaz (5th Cir. 2024) for evaluating as-applied Second Amendment challenges to § 922(g)(1). Under Diaz, we ask whether “at least one of the predicate crimes that [the] § 922(g)(1) conviction relies on … was a felony and thus would have led to capital punishment or estate forfeiture” at the Founding. But our later cases have not uniformly followed that approach. Some … have instead applied a more generalized dangerousness inquiry.

Perhaps Diaz‘s common-law-analogue test best captures our “historical tradition of firearm regulation.” Or perhaps a more generalized dangerousness inquiry better captures that tradition. Perhaps neither captures the tradition completely. Or perhaps each captures a distinct strand of it. For now, however, our cases send mixed signals about how district courts should analyze as-applied Second Amendment challenges to § 922(g)(1). In an appropriate case, our full court—or the Supreme Court—should supply the clarity this unsettled corner of Second Amendment law now lacks….

Thanks to Michael Smith (Smith Appellate Law Firm) for the pointer.

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