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.
