Is the Federal Prohibition on Felon Firearm Possession Constitutional?

Arnett Jackson Bonner has multiple felony convictions. This means he cannot possess a firearm. Under 18 U.S.C. § 922(g)(1), convicted felons may not “possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Because almost all firearms have been shipped or transported across state lines, this operates as a ban on firearm possession. Is this prohibition constitutional?

Current Supreme Court precedent provides that the federal government is one of limited and enumerated powers, and that the federal government’s most expansive powers–to regulate commerce among the several states–is not a plenary power to regulate anything and everything, even when supplemented with the Necessary and Proper Clause. On this basis, in United States v. Lopez, the Court held that a prohibition on possessing guns in schools exceeded Congress’ power to regulate commerce (even though the defendant in that case was facilitating a commercial transaction).

Statutes such as § 922(g)(1) seek to satisfy Lopez by including a jurisdictional element–in this case a requirement that the possession be “in or affecting commerce” or that the gun received crossed state lines–so as not to exceed the scope of the commerce power. But is it that easy? Jurisdictional elements written so broadly would seem to make a mockery of the idea that Congress’ powers are limited and enumerated.

This is the view of at least two judges on the U.S. Court of Appeals for the Fifth Circuit. In United States v. Bonner, Judge Willett wrote a separate concurring opinion (joined by Judge Duncan), suggesting a need to revisit the scope of jurisdictional elements such as those in § 922(g)(1), as well as to consider whether such broad prohibitions are consistent with the Second Amendment. (The opinion was just a concurrence because circuit precedent foreclosed Bonner’s constitutional challenges to his conviction.)

The Commerce Clause portion of the concurrence reads:

“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” And although those powers “are sizable, . . . they are not unlimited.” That means, among other things, Congress has no power to enact a comprehensive criminal code. As Chief Justice Marshall—no skeptic of national power—explained, “It is clear, that Congress cannot punish felonies generally.” In short, not everything we may want to criminalize can be criminalized by the federal government. For example, “Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction,” but it has “no general right to punish murder committed within any of the States.”

As relevant here, § 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition.” On its face, the phrase “in or affecting commerce” might appear to require a genuine commercial nexus— placing § 922(g)(1) squarely within Congress’s power “[t]o regulate Commerce . . . among the several States,” or perhaps within its authority “[t]o make all Laws which shall be necessary and proper for carrying into Execution” that power. But in Scarborough v. United States, the Supreme Court interpreted § 922(g)(1)’s predecessor far more broadly, reading “in or affecting commerce” to demand no more than “the minimal nexus that the firearm have been, at some time, in interstate commerce.” Applying that interpretation to § 922(g)(1), we have held that the Government need show only that a firearm was manufactured in one State and later discovered in another. The Supreme Court has gone further still, suggesting that a defendant need not even know the firearm ever crossed state lines.

So construed, it is difficult to see how § 922(g)(1) honors the principle of enumerated powers. In United States v. Lopez, the Supreme Court “identified three broad categories of activity that Congress may regulate under its commerce power.” “First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”

Mere possession of a firearm fits uneasily within any of these categories. The closest candidate might be “activities that substantially affect interstate commerce”—after all, some have argued that “widespread, firearm-related crime” has a substantial effect on the national economy. But whatever the effect of such “widespread” crime, the economic consequences of Bonner’s individual act of possession is hardly “substantial.” At best, § 922(g)(1) can meet the substantial-effects test only by aggregating the impact of all firearm possession by felons. Yet aggregation is ordinarily appropriate only when the underlying activity is economic—and firearm possession is not. As the Supreme Court explained in United States v. Morrison, “[t]he Constitution requires a distinction between what is truly national and what is truly local.” And it is, indeed, “hard to imagine a more local crime than this.”

While we have acknowledged the force of this objection, we have “regard[ed] Scarborough . . . as barring the way.” But it was not Scarborough‘s holding that led us to that conclusion; as we have noted, “Scarborough addresses only questions of statutory construction, and does not expressly purport to resolve any constitutional issue.” Instead, we have relied on what we took to be Scarborough’s “implication of constitutionality.” Yet a decision like Scarborough—in which the Commerce Clause “was not at issue, and was not so much as mentioned in the opinion”—is “scant authority” on the meaning of that Clause. In concluding otherwise, we have strayed from the Supreme Court’s considered interpretations of the Commerce Clause in Lopez, Morrison, and NFIB v. Sebelius, and from its admonition that “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”

The pseudonymous Anti-Federalist Brutus objected to Congress’s powers under the new Constitution, fearing that “implication” would “extend” them “to almost every thing.” He also warned that the Judiciary would become an instrument for enlarging federal authority, predicting that we would “extend the limits of the general government gradually” through “a series of determinations,” ultimately “facilitati[ng] the abolition of the state governments.” Our reliance on Scarborough combines these fears: our decisions now expand federal power not by remote implication from the constitutional text, but by remote implication from our own precedents.

While Brutus’s fears of the total abolition of the States may have been overstated, the steady expansion of federal power has nonetheless deprived the States of much of their freedom to pursue innovative, locally tailored solutions to vexing problems. Most debates over felon disarmament focus on the Second Amendment (which I address below). But there is also a serious question about whether some individuals who may constitutionally be disarmed should nevertheless have their rights restored. In the system the Framers designed, the States could—within constitutional bounds—serve “as laboratories for devising solutions” to that “difficult legal problem[].” By contrast, in the world § 922(g)(1) has created (and we have blessed), such experimentation is foreclosed by the long arm of the general government— much like the world Brutus feared.

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As one of our colleagues has observed, “our circuit precedent dramatically expands the reach of the federal government under the Commerce Clause. No Supreme Court precedent requires it. And no proper reading of the Commerce Clause permits it.”31 That alone is reason enough for the full court—or, if need be, the Supreme Court—to take up the question and reexamine our precedent.

If federal power to regulate commerce among the several states is limited–that is, if it is not a plenary power to reach any and all activity–§ 922(g)(1) cannot be read as broadly as current precedent suggests. To hold that Congress may regulate any activity that is conducted with any object that has crossed state lines or been bought or sold in interstate commerce is to obliterate the limits on federal power recognized in Lopez, Morrison, and NFIB.  It is to treat commerce not as something to be regulated, but as a contagion that infects everything it touches, subjecting it to federal regulation and control.

Current law does not hold that once an individual has traveled or participated in interstate commerce, that person is eternally subject to federal regulation and control without regard for what activities they engage in (see, e.g., NFIB). There is no reason to treat objects differently. It is one thing to regulate articles in commerce as part of a regulatory scheme covering such commerce. It is quite another to say that such articles can always be regulated. Thus Alfonso Lopez could have been prosecuted for bringing a gun to school for the purposes of completing a gun sale, but it was impermissible to prosecute him merely for possessing a gun in a designated place (the school zone). The former could be understood as a regulation of commerce, the latter is not.

It seems to me that the analysis required by Lopez and its progeny should first identify the activity (or class of activities) subject to regulation, and then consider whether that class is economic in nature, or sufficiently related to economic activity that its regulation is a necessary part of a broader regulatory scheme. This approach would account for the Court’s post-Lopez decisions (including the misstep in Gonzales v. Raich) while maintaining limits on federal power. It might, however, require reevaluating the constitutionality of statutory provisions like § 922(g)(1), or at least reconsidering the basis upon which such prohibitions could be considered constitutional.

And although it’s beyond the scope of this post, Judge Willett’s concerns about how to reconcile his circuit’s precedent interpreting and applying § 922(g)(1) with Bruen are  worth a read too.