The Quiet Case That Could Unravel Federal Gun Law: The Fifth Circuit, the Commerce Clause, and United States v. Squire

The most consequential federal firearms case pending today may ultimately have little to do with gun rights and everything to do with Congress's constitutional power to enact criminal laws. That is why United States v. Squire deserves attention.

On July 20, 2026, the U.S. Court of Appeals for the Fifth Circuit voted to rehear Squire en banc, vacating a panel opinion issued seven weeks earlier. What began as a routine as-applied Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), has been reframed as a facial Commerce Clause challenge — meaning that if Squire prevails, the statute would be unconstitutional in all its applications, not merely as applied to him.

Judge Stephen Higginson, dissenting alone from the order granting rehearing, wrote that the court was answering a call issued weeks earlier by Justice Clarence Thomas — and that in doing so it imperiled much of the United States Code. His concern illustrates the breadth of the constitutional theory now before the court.

Here is what is actually happening, why it traces directly back to a Supreme Court concurrence from June, and what it does and does not mean for gun owners right now.

How a Routine Appeal Became a Constitutional Test Case

Curtis Squire was charged in the Eastern District of Louisiana under § 922(g)(1), the federal statute barring anyone convicted of a felony from possessing a firearm or ammunition. He challenged the prosecution on Second Amendment grounds — an as-applied argument that the ban was unconstitutional as to him specifically. A three-judge Fifth Circuit panel rejected that argument on June 2, 2026.

Squire then petitioned for rehearing en banc. But his petition reframed the case entirely. Rather than pressing the Second Amendment theory, it asked the full court to apply United States v. Lopez — the 1995 Supreme Court decision striking down the Gun-Free School Zones Act as beyond Congress's commerce power — to § 922(g)(1).

On July 20, a majority of the Fifth Circuit's active judges voted to grant rehearing. Under circuit rules, the panel opinion was automatically vacated. Supplemental briefing will be ordered; oral argument will be scheduled later.

The Thomas Concurrence That Started It

The timing is not coincidental, and the Fifth Circuit's order does not pretend otherwise.

On June 18, 2026, the Supreme Court decided United States v. Hemani, holding that the government could not automatically prosecute a defendant under § 922(g)(3) — the unlawful-drug-user provision — on the theory it had advanced.

Writing separately in that case, Justice Thomas raised a question the parties had not briefed: whether § 922(g) rests on a valid exercise of Congress's Commerce Clause power at all. He was writing alone. No other justice joined him, and a solo concurrence carries no precedential weight — it is an invitation to litigants and lower courts, not a holding.

Three weeks later, the Fifth Circuit accepted the invitation.

Why the Commerce Clause Argument Is Different

This is the part most coverage glosses over, and it matters.

Nearly every significant firearms case since Bruen has been a rights case: does the Second Amendment protect this conduct, and can the government justify the restriction by pointing to historical tradition? Squire is a power case: did Congress have constitutional authority to pass this law in the first place?

The distinction has enormous practical consequences. A Second Amendment ruling invalidates a gun law. A Commerce Clause ruling of the kind Squire seeks would invalidate a category of congressional authority.

That authority underpins vastly more than firearms regulation — which is precisely why a case about one felon's handgun has drawn the attention of constitutional scholars who have never litigated a Second Amendment claim.

Lopez set out three categories of congressional commerce power: regulating the channels of interstate commerce; regulating and protecting the instrumentalities of interstate commerce, and persons or things in interstate commerce; and regulating activities that substantially affect interstate commerce. See 514 U.S. 549, 558–59 (1995). The Court held that the original § 922(q) failed all three because it neither regulated commercial activity nor required any connection between the prohibited possession and interstate commerce.

Why Every Circuit Has Upheld § 922(g)

Here is the crucial difference, and the heart of Higginson's dissent: § 922(g) contains an express interstate-commerce jurisdictional element that § 922(q) lacked. In plain terms, the government must prove some connection between the firearm and interstate commerce as an element of the offense. The statute reaches firearms transported "in interstate or foreign commerce," possessed "in or affecting commerce," or received after interstate transport. Congress wrote that requirement into the text.

Since Lopez, every federal circuit to consider the question has concluded that this express element distinguishes § 922(g) from the Gun-Free School Zones Act. Courts have generally held that proof the firearm previously traveled in interstate commerce satisfies Congress's commerce authority, even when the defendant's possession itself was entirely intrastate.

The Fifth Circuit is no exception. As Higginson noted, that court distinguished § 922(g) from § 922(q) at the circuit level in Lopez itself, reasoning that because a commerce nexus is an element of the § 922(g) offense, each application of the statute falls within the commerce power. It reaffirmed that holding after Lopez in United States v. Rawls, expressly joining every other circuit to have addressed the issue.

The facts of Squire's own case illustrate the point. In the factual basis supporting his plea, he admitted that the firearm and ammunition had traveled in interstate commerce before his possession and were manufactured outside Louisiana.

To rule for Squire, then, the en banc court would have to hold that even an express jurisdictional element is constitutionally insufficient. Higginson called that what it would be: the start of a new, severely contracted Commerce Clause era.

The "Imperil Much of the Code" Problem

Higginson's dissent walks through the consequences, and the list explains why this case draws attention far outside the gun-rights world.

Within § 922 alone, he asks: could felons from other circuits relocate to the Gulf Coast to rearm? Would every § 922(g) defendant in the circuit need to challenge his conviction? What is the retroactive effect for those already convicted?

Beyond federal firearms law, the questions get harder. Countless federal statutes rest on the same commerce authority. Higginson names possession of child pornography, explosive materials, and biological weapons — then reaches past criminal law entirely to regulations on financial transactions, intellectual property, and endangered species.

He also flags a procedural concern worth noting. The court granted rehearing without full adversarial development, on a government brief whose Commerce Clause discussion ran no more than six pages, in a case he believes warrants input from the Solicitor General, state solicitors general, and Commerce Clause scholars.

None of that means the Fifth Circuit will rule for Squire. Granting rehearing is not deciding a case. But it does mean the question is genuinely open in one federal circuit for the first time in three decades.

What This Means Right Now — Practically, Nothing

This is exactly the kind of development that generates dangerous misreadings, so the practical points deserve to be stated plainly.

§ 922(g) is fully in force. Every subsection — felons, unlawful drug users, domestic-violence misdemeanants, persons subject to qualifying restraining orders, and the rest — remains enforceable in Louisiana, Mississippi, and Texas, and everywhere else. The vacated panel opinion changes nothing about the statute's operation.

A prohibited person who acquires a firearm today is committing a federal felony. The existence of a pending en banc rehearing is not a defense. It is not a signal. It is not permission.

Nothing has been briefed, argued, or decided. The order directs the Clerk to set a briefing schedule and promises argument "on a date hereafter to be fixed." A decision is likely many months out, and any ruling favorable to Squire would almost certainly draw a certiorari petition.

Even a ruling for Squire would bind only the Fifth Circuit — and would immediately create a split with every other circuit, which is precisely the posture that draws Supreme Court review.

What I Am Watching

Three things will tell us where this goes.

The briefing. Higginson's complaint about thin adversarial development will likely be cured — expect substantial amicus participation, possibly including the Solicitor General. How the government defends § 922(g)'s jurisdictional element will shape the argument.

Whether the court reaches the facial question at all. The en banc court could resolve Squire on the narrower as-applied Second Amendment ground it originally presented, sidestepping the Commerce Clause entirely. Courts often prefer the narrower path, and the intra-circuit split on as-applied § 922(g)(1) challenges is itself unresolved.

Whether other circuits follow. Justice Thomas's invitation was addressed to all lower courts, not just the Fifth. If a second circuit takes up the question, the issue reaches the Supreme Court considerably faster.

Frequently Asked Questions

Does United States v. Squire make it legal for felons to possess firearms?

No. The Fifth Circuit granted rehearing; it has not decided anything. Section 922(g)(1) remains fully enforceable in every state, including Louisiana, Mississippi, and Texas. A prohibited person who acquires a firearm today commits a federal felony, and a pending appeal provides no defense.

What is the Commerce Clause?

It is the provision of Article I giving Congress power to regulate commerce among the states. Because the federal government has only the powers the Constitution grants it, most federal criminal statutes must trace back to an enumerated power — and for firearms laws, that power is usually the Commerce Clause. If Congress lacks the authority, the statute fails regardless of whether it would otherwise survive Second Amendment review.

What did Justice Thomas actually say?

In a concurrence in United States v. Hemani, joined by no other justice, he questioned whether § 922(g) rests on valid Commerce Clause authority and suggested lower courts revisit the issue. A solo concurrence is not binding precedent. It signals one justice's view and invites litigants to raise the argument.

Is § 922(g) still enforceable?

Yes, everywhere, without qualification. Nothing about the rehearing grant suspends the statute.

Could this reach the Supreme Court?

Quite possibly. If the en banc Fifth Circuit were to strike down § 922(g), it would split from every other circuit — the classic condition for Supreme Court review. A ruling upholding the statute would more likely end the matter, though the losing party could still petition.

The Bottom Line

Squire is worth watching precisely because it is not a Second Amendment case. The post-Bruen era has trained everyone — gun owners, lawyers, commentators — to ask whether a firearms restriction fits the nation's historical tradition. This case asks a different and older question: whether Congress had the constitutional authority to legislate at all.

A single justice's concurrence prompted a federal appeals court to take that question seriously within three weeks. That is a meaningful signal about the direction of doctrine, and it deserves attention.

But signal is not law. Every circuit to consider § 922(g) under the Commerce Clause has upheld it, the statute carries an express jurisdictional element that the law struck down in Lopez did not, and the Fifth Circuit has not heard a word of argument. If you are a prohibited person, nothing about this case makes it lawful for you to possess a firearm — unless and until the law actually changes.