Background
Curtis Squire appealed from a federal criminal case in the Eastern District of Louisiana involving 18 U.S.C. § 922(g)(1), the federal prohibition on firearm possession by a felon. A Fifth Circuit panel issued an opinion on June 2, 2026.
Squire then petitioned for rehearing en banc. According to Judge Stephen A. Higginson’s dissent from the rehearing order, the case had involved an as-applied Second Amendment challenge but the petition presented what the dissent understood as a facial Commerce Clause challenge to § 922(g)(1). Squire had admitted in the factual basis for his plea that the firearm and ammunition were manufactured outside Louisiana and had traveled in interstate commerce before his possession.
The Court’s Holding
The Fifth Circuit did not decide whether § 922(g)(1) is constitutional. A majority of the active, non-disqualified circuit judges voted to rehear the case en banc. The court ordered future oral argument and supplemental briefing on a schedule to be set by the clerk.
Under Fifth Circuit Rule 41.3, the court vacated the panel opinion dated June 2, 2026. The rehearing order was per curiam and contained no reasoning from the majority.
Judge Higginson dissented, arguing that § 922(g) contains an express interstate-commerce nexus and that binding Fifth Circuit precedent, consistent with every other circuit, has upheld § 922(g)(1) under the Commerce Clause. He warned that revisiting that precedent could affect not only federal firearm prosecutions but also numerous other federal laws grounded in Congress’s commerce power.
Key Takeaways
- The Fifth Circuit granted rehearing en banc but made no merits ruling on the constitutionality of § 922(g)(1).
- The June 2, 2026 panel opinion is vacated and no longer governs the case.
- The en banc court will receive supplemental briefing and hear oral argument on a date to be set.
Why It Matters
The full Fifth Circuit will reconsider a challenge that could implicate Congress’s Commerce Clause authority to prohibit firearm possession by felons. The eventual decision may clarify or alter circuit precedent sustaining § 922(g)(1)’s interstate-commerce element.
For now, the order changes the case’s procedural posture rather than the governing substantive law. Judge Higginson’s dissent underscores the potentially broad consequences of any eventual ruling that restricts the Commerce Clause basis for § 922(g).