On September 14, the Fifth Circuit granted rehearing en banc in United States v. Cordova, a Second Amendment challenge to the lifetime felon gun ban, 18 U.S.C. § 922(g)(1). That follows the July 20 en banc rehearing grant in United States v. Squire, a challenge to the same prohibition under the Commerce Clause. These cases test whether Congress had the power in the first place, and even if so, is it prohibited from doing so?
As I posted previously, Squire posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation." As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…." That issue together with Squire's Commerce Clause challenge were held to be foreclosed by circuit precedent. Section 922(g)(1) includes as an element of the offense that the person did "possess [a firearm] in or affecting commerce," or did receive a firearm "which has been shipped or transported in interstate or foreign commerce."
Unsuccessful attempts to rein in Congress on the Commerce Clause included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus. Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent.
