Fifth Circuit Takes Justice Thomas Up on Challenge to Federal Gun-Control Power

July 20, 2026
5:30 pm

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The Fifth Circuit’s decision to vacate Curtis Squire’s felon-in-possession conviction is more than a procedural reset—it’s a direct invitation to revisit the shaky constitutional foundation of the federal gun-control regime. By granting rehearing en banc, the court is signaling that it may finally confront the fiction that a firearm’s one-time interstate journey somehow converts every subsequent local possession into a federal matter. Justice Thomas’s earlier challenge in *Range* and *Bruen* has clearly landed: if the Second Amendment protects the right to keep and bear arms, then Congress cannot bootstrap permanent regulatory power from a single act of commerce that may have occurred decades earlier. For the 2A community this rehearing is a high-stakes test of whether post-*Bruen* courts will continue to treat the Commerce Clause as an all-purpose override. The government’s theory—that any gun that ever crossed a state line remains subject to federal felon bans—has allowed Washington to criminalize possession in purely intrastate scenarios with no fresh nexus to commerce. If the Fifth Circuit rejects that theory, it would force the federal government to prove an actual, current connection to interstate activity rather than relying on historical happenstance. That shift would immediately affect thousands of cases and could cascade to other circuits already questioning the breadth of 18 U.S.C. § 922(g). The larger implication is that the Fifth Circuit may be positioning itself to demand historical analogues for the modern felon-in-possession regime rather than accepting the government’s “sensitive places” or “longstanding prohibition” shortcuts. Should the court hold that the Second Amendment’s text and history do not support lifetime disarmament based solely on a prior felony, the ruling would not only free Squire but also reopen the question of which non-violent felonies can constitutionally trigger disarmament at all. In short, the Fifth Circuit is no longer content to let the Commerce Clause do the heavy lifting that the Second Amendment was meant to prevent.

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For the 2A community this rehearing is a high-stakes test of whether post-*Bruen* courts will continue to treat the Commerce Clause as an all-purpose override. The government’s theory—that any gun that ever crossed a state line remains subject to federal felon bans—has allowed Washington to criminalize possession in purely intrastate scenarios with no fresh nexus to commerce. If the Fifth Circuit rejects that theory, it would force the federal government to prove an actual, current connection to interstate activity rather than relying on historical happenstance. That shift would immediately affect thousands of cases and could cascade to other circuits already questioning the breadth of 18 U.S.C. § 922(g).

The larger implication is that the Fifth Circuit may be positioning itself to demand historical analogues for the modern felon-in-possession regime rather than accepting the government’s “sensitive places” or “longstanding prohibition” shortcuts. Should the court hold that the Second Amendment’s text and history do not support lifetime disarmament based solely on a prior felony, the ruling would not only free Squire but also reopen the question of which non-violent felonies can constitutionally trigger disarmament at all. In short, the Fifth Circuit is no longer content to let the Commerce Clause do the heavy lifting that the Second Amendment was meant to prevent.

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