This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.
At the Supreme Court’s oral argument last week in United States v. Hemani, all eyes were on the Second Amendment. There is, however, an existential threat to the federal gun-control statute at issue in Hemani, 18 U.S.C. § 922(g), that is waiting in the wings.
In a series of subparagraphs, Section 922(g) prohibits the possession of firearms by specified categories of individuals, such as felons and fugitives. Ali Danial Hemani raised a Second Amendment challenge to paragraph (3) of Section 922(g), which prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance” as defined in the Controlled Substances Act. The Fifth Circuit held that as applied to Hemani, who had been convicted based on his marijuana use, paragraph (3) violates the Second Amendment. In so ruling, the Fifth Circuit followed its prior decision in United States v. Connelly, which held that the nation’s “history and tradition may support some limits on a presently intoxicated person’s right to carry a weapon” but “do not support disarming a sober person based solely on past substance usage.” The Connelly decision, in turn, distinguished the Supreme Court’s 2024 decision in United States v. Rahimi, which rejected a Second Amendment challenge to paragraph (8) of Section 922(g), to the extent that paragraph (8) prohibits the possession of firearms by a person who is subject to a domestic violence restraining order that includes a finding that the person “represents a credible threat to the physical safety” of an intimate partner. The Supreme Court in Rahimi explicitly declined to decide whether paragraph (8) would violate the Second Amendment in other circumstances.
As this account illustrates, Second Amendment challenges to Section 922(g) are important but limited in scope. They target, on a paragraph-by-paragraph basis, particular prohibitions on firearms possession by specified categories of individuals. Although there are open questions about the level of granularity that courts should use in considering such challenges, the Second Amendment provides no basis to invalidate Section 922(g) in its entirety.
By contrast, several Fifth Circuit judges—Judge Willett, joined by Judge Duncan, and Judge Ho, joined by Judge Smith and Judge Engelhardt—have offered an alternative theory for challenging Section 922(g) that, if accepted, would bring down all of the restrictions in all nine paragraphs in one fell swoop. As I explain in this recently published essay, these Fifth Circuit judges contend that Section 922(g) exceeds the scope of Congress’s commerce power. They recognize that Section 922(g) includes a jurisdictional element that, as interpreted by the Supreme Court in Scarborough v. United States, requires a showing that the firearm at issue previously crossed state lines. But they argue that this 1977 Scarborough decision does not survive the Supreme Court’s 1995 decision in United States v. Lopez, which held that a federal ban on possessing a gun in a school zone exceeded Congress’s commerce power. These Fifth Circuit judges assume that the legislative rationale for Section 922(g) is to address the aggregate impact that firearms-related crime has on the national economy, and they argue that Section 922(g) thus rests on the same attenuated set of inferences that the Supreme Court deemed an impermissible use of the commerce power in Lopez.
If the Supreme Court were to accept this commerce power theory, the consequence would be to nullify Section 922(g) as unconstitutional on its face. My essay offers a different path forward: reconceptualizing the commerce power basis for Section 922(g), which is not the aggregate impact of gun crimes on the national economy. Once Section 922(g)’s rationale is correctly understood, Congress’s authority to enact this provision is apparent under Supreme Court precedent that postdates Lopez.
Unlike the Gun Free School Zones Act that was at issue in Lopez—which was a standalone statute that did not form part of a broader regulatory scheme—the restrictions in Section 922(g) form an integral part of Congress’s broader regulation of the interstate firearms market. My essay shows that, ever since Congress enacted the first major firearms regulation in 1938, Congress has sought to interfere as little as possible with the access of the general population to the interstate firearms market. Instead of requiring members of the general population to obtain a federal license to buy firearms, Congress has excluded from the interstate firearms market the far smaller number of individuals who, in Congress’s judgment, are particularly likely to misuse firearms—such as felons, fugitives, persons discharged dishonorably from the military, persons committed to mental institutions, and the other categories enumerated in Section 922(g). These targeted restrictions on the possession of firearms by discrete categories of individuals have allowed Congress to promote the interstate firearms market more generally. Indeed, when Congress relaxed certain aspects of its firearms regulations in 1986 as part of the Firearms Owners’ Protection Act, Congress coupled the new protections with new restrictions that made it unlawful for any person to sell or provide firearms to the prohibited categories of persons.
The evolution of Congress’s firearms regulations thus leaves no doubt that Section 922(g) is an integral part of Congress’s broader regulation of the interstate firearms market. So understood, the ban is within Congress’s commerce power for reasons that are analogous to ones that the Supreme Court articulated in Gonzales v. Raich, which upheld the federal ban on marijuana possession in the Controlled Substances Act (“CSA”) as a valid exercise of Congress’s commerce power. Just as a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets, a primary purpose of the federal firearms regulations is to control the supply and demand of firearms in both lawful and unlawful firearms markets. The possession ban in Section 922(g) suppresses the demand from the enumerated categories of individuals for a fungible commodity (firearms) for which there is an established and lucrative interstate market. The ban thus complements Congress’s supply-side regulations that make it unlawful for a person to sell or otherwise distribute firearms to persons in these enumerated categories.
In short, Congress enacted Section 922(g) as a tool to foster the interstate firearms market by excluding certain participants from that market. Thus understood, Section 922(g) falls easily within Congress’s commerce power.
