5th Circuit Tees Up the Question: Is a Living-Room Gun Really Interstate Commerce?

Jay Rogers’s August 6 Washington Examiner op-ed puts a live Fifth Circuit fight in front of gun owners who usually only track Bruen footnotes. Curtis Squire kept a handgun at home in New Orleans. Police found it during a search tied to a shooting he wasn’t charged with. Prior heroin-trafficking and burglary convictions turned possession into a federal felony under 18 U.S.C. § 922(g)(1). A Fifth Circuit panel upheld the conviction in June on dangerousness/history grounds. On July 20, the full court voted to rehear en banc — and Squire’s counsel switched theories.

They dropped the Second Amendment argument and went after the Commerce Clause. Current doctrine, tracing to Scarborough v. United States (1977), lets prosecutors satisfy the interstate element by showing the gun or ammo crossed a state line sometime, by anyone. Manufacture in Connecticut decades before a Louisiana living room still counts. Rogers argues that post-Lopez (1995) and Morrison (2000), Congress can’t federalize ordinary possession just because the object once moved in commerce — and that Justice Thomas has already questioned whether § 922(g) exceeds enumerated powers.

Judge Stephen Higginson dissented from the rehearing grant, warning the majority welcomed the possibility of killing Commerce Clause support for § 922(g) altogether. Rogers’s closer: states already prosecute felon possession; Washington shouldn’t get a national gun police power on a manufacturing pedigree. If the en banc court narrows Scarborough, this heads to the Supreme Court. Ugly defendant. Foundational question.