How One Felon’s Legal Fight Could Change The Face Of Federal Gun Laws Forever

Unsplash/Tom Def

Federal laws governing the possession of firearms could be drastically pared back or wiped out depending on how an entire federal appeals court rules on a case.

The Fifth Circuit Court of Appeals granted a request on July 20 to hear an appeal of a panel’s ruling that upheld the conviction of Curtis Squire, who had been charged with being a felon in possession of a firearm. A ruling favoring Squire, whose attorneys raised arguments over the Commerce Clause, could drastically pare back the reach of federal gun laws involving possession of firearms.

The decision to take the case “en banc” came a month after Supreme Court Associate Justice Clarence Thomas authored a concurring opinion in Hemani v. United States raising the possibility that federal firearms possession laws were unconstitutional on the grounds that they exceeded the authority granted to Congress via the Commerce Clause. The three-judge panel’s opinion upholding the sentence was released on June 2, over two weeks prior to the Supreme Court issuing the Hemani decision.

The Supreme Court narrowed the applicability of the prohibition on marijuana users in a unanimous ruling issued June 18 in the case of Hemani v. United States, saying that in the narrow case applying to Hemani and other users of marijuana, the prohibition was not in line with historical regulations permitted under the Second Amendment.

One Second Amendment scholar hinted that a three-decade-old Supreme Court ruling could come into play.

“Being a felon in possession of a firearm is a purely state matter involving local crime, over which the federal government was never intended to meddle,” attorney Stephen Halbrook told the Daily Caller News Foundation. “There’s nothing commercial about it, as the Supreme Court recognized in Lopez.”

In 1995, the Supreme Court struck down the 1990 Gun-Free Schools Zones Act, which made it a federal crime to have a firearm within 1,000 feet of a school, finding in United States v. Lopez that mere possession of a firearm did not affect interstate commerce.

Circuit Judge Stephen Higginson, an Obama appointee, penned a rare dissent to the court’s decision to hear the Squire case, claiming it could have widespread effects.

“We have not yet seen briefing from the parties and amici (in a case of this magnitude, likely including the Solicitor General, state solicitors general, the National Association of Criminal Defense Lawyers, Commerce Clause scholars, and others, maybe counsel from the newly created Supreme Court Advocacy Program), have not yet heard oral argument, and certainly have not voted on the merits of this case as an en banc court,” Higginson wrote. “However, in granting the petition to rehear this case, our court has welcomed the possibility of finding that Congress’s Commerce Clause authority cannot support § 922(g). If so, this case would have massive import for federal law.”

Higginson questioned if a ruling in favor of Squire could invalidate laws prohibiting the possession of child pornography in his dissent. The Justice Department did not respond to a request for comment from the DCNF.

The massive implications of a potential ruling in favor of Squire on Commerce Clause grounds haven’t been lost on pro-Second Amendment groups.

“We think that this case is of great importance,” Gun Owners of America Florida State Director Luis Valdez told the DCNF. “And one of the reasons why is a lifetime ban on exercising a civil right isn’t constitutional.”

“The fact that a firearm went across state lines at some point in its history does not render it eternally in interstate commerce,” Halbrook continued. “If 922(g) is held unconstitutional, the states are free to enforce their own laws on the subject.”

Congress has cited its power under the Commerce Clause in federal laws, often declaring that firearms that have “been shipped or transported in interstate or foreign commerce” are covered by the prohibition on possession.

Squire had past convictions for drug trafficking, which warranted upholding his conviction, according to the decision by the three-judge panel that initially heard the appeal. However, the unanimous opinion left open the possibility that prohibiting some felons who lacked a history of “dangerousness, violence or threats to public order” would run afoul of the Second Amendment.

“We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order,” the panel said in its original ruling.

“It’s always these sorts of people that end up making case law,” Second Amendment Foundation Director of Legal Research and Education Konstadinos Moros told the DCNF, noting that the “Miranda” case that led to arrested suspects being informed of their constitutional rights involved a real “dirtbag.”