With a recent vote, the country’s most conservative federal appeals court has agreed to consider a ruling that could upend America’s federal gun-control regime.

The Fifth Circuit Court of Appeals on Monday voted to take the case US v. Squire en banc. The case concerns a challenge to § 922(g)(1), the federal lifetime gun ban for convicted felons, filed by Curtis Squires, a Louisiana man who was charged under the ban for possessing a handgun despite being previously convicted of dealing heroin and several other felonies. A three-judge Fifth Circuit panel rejected Squire’s challenge last month, giving occasion for the court to consider taking it up in full.

That history is fairly par for the course as far as court news goes these days. The federal felony gun ban is the most charged federal gun control law and, by extension, has become the most commonly challenged gun law in constitutional suits ever since the US Supreme Court decided New York State Rifle and Pistol Association v. Bruen in 2022. Furthermore, at least one en banc appellate court has already struck the law down as unconstitutional under the Second Amendment, at least as applied to a particular non-violent felon.

What makes the Fifth Circuit’s en banc grant in this case stand out then is not just that another court might again invalidate a felon-in-possession conviction. Instead, it is the fact that the court agreed to take up the case to expressly reconsider the underlying constitutional justification Congress used when it passed 922(g)(1), along with the rest of the Gun Control Act, in the first place.

In their petition for rehearing the case en banc, Squire’s lawyers set aside any Second Amendment claims and explicitly made the case about a challenge to 922(g)(1) under the Constitution’s Commerce Clause.

“In a series of cases beginning with United States v. Lopez, the Supreme Court made clear that while the Commerce Clause permits regulation of economic activities that substantially affect interstate commerce, it does not authorize plenary federal regulation of noneconomic conduct, including mere firearm possession,” Squire’s lawyers wrote. “As the Court explained, such limits on the commerce power are necessary to protect federalism and to prevent the federal government from exercising a general police power, which is strictly reserved for the States.”

“This Court’s § 922(g)(1) precedent, however, ignores Lopez and, in doing so, impermissibly expands the federal government’s ability to regulate noneconomic conduct far beyond what the Commerce Clause permits,” they added.

That distinction matters enormously. Whereas a successful Second Amendment challenge might see Squire get off on his individual charge, the Commerce Clause claims, if they prevailed, could strike down the federal felon-in-possession ban on its face.

To date, every single appeals court to consider Commerce Clause challenges to § 922 has upheld it, largely by treating the statute’s repeated reference to prohibitions on transporting or possessing firearms in “interstate or foreign commerce” and “in or affecting commerce” as low bars to clear. More specifically, courts have generally accepted the notion that a firearm having been manufactured in a different state before a federal possession crime took place satisfies the interstate commerce piece. That is, at least, until a current Supreme Court justice explicitly called that idea into question in a recent major ruling.

In last month’s unanimous decision in US v. Hemani, the Supreme Court struck down the federal gun ban for unlawful marijuana users for a particular defendant on Second Amendment grounds. However, in a solo concurrence, Justice Clarence Thomas wrote that the statute in question, § 922(g)(3), and indeed the rest of the federal prohibited persons categories “appear[] to exceed Congress’s enumerated power to regulate interstate commerce.”

“Under the prevailing interpretation of §922(g)(3), the Government can secure a conviction for unlawful firearm possession ‘if the firearm possessed’ by the drug user ‘had previously traveled in interstate commerce.’ The Commerce Clause does not authorize Congress to ‘regulate or ban possession of any item that has ever been offered for sale or crossed state lines,’” Thomas wrote. “So, while the issue was not presented in this case, the Court, and lower courts, should revisit the constitutionality of §922(g).”

And while the petition for rehearing predated the Hemani decision, Squire’s lawyers nevertheless captured the spirit of Thomas’ complaint in their petition by emphasizing the overwhelmingly intrastate nature of his offense.

“The only connection to commerce was that the firearm and ammunition that Mr. Squire possessed in his own home happened to have been ‘manufactured outside the state’ and had—at some unknown point prior to Mr. Squire possessing them—’traveled in interstate commerce,’” they wrote. “That’s it.”

Thus, it appears that the Fifth Circuit will be the first lower court to heed Thomas’ call and consider whether Squire’s offense had a sufficient nexus to interstate commerce to pass constitutional muster. Monday’s en banc order did not include a breakdown of the judges’ votes on granting en banc, so we don’t know exactly how many of the judges who will decide this issue agreed to do so eagerly. We do know, however, that even before Justice Thomas’ musings in his Hemani concurrence, several active members of the Fifth Circuit were already making their feelings about the current status of Commerce Clause jurisprudence as it relates to federal gun control law clear in a number of non-precedential opinions going back several years.

Joined by Judges Jerry Smith and Kurt Engelhardt, Judge James Ho dissented from a denial of rehearing en banc in the 2022 case US v. Seekins, where he raised many of the same arguments against § 922(g)(1) under the Commerce Clause.

“For too long, our circuit precedent has allowed the federal government to assume all but plenary power over our nation,” he wrote. “In particular, our circuit precedent licenses the federal government to regulate the mere possession of virtually every physical item in our nation—even if it’s undisputed that the possession of the item will have zero impact on any other state in the union. The federal government just has to demonstrate that the item once traveled across state lines at some point in its lifetime, no matter how distant or remote in time. That is no limit at all.”

In a 2025 concurrence in US v. Bonner, Judge Don Willett, joined by Judge Kyle Duncan, did the same. Willett later raised the same arguments again in a case dealing with § 922(o), which bans civilian ownership of new machine guns after 1986, in a January 2026 concurrence.

That suggests that at least a handful of the court’s membership could be willing to strike the law down on its face.

By contrast, just one judge, Judge Stephen Higginson, registered a dissent from the court’s agreement to take the case en banc, in which he accused his colleagues of “imperil[ing] much of the United States Code.”

“In the context of § 922 convictions alone, such a holding would raise several immediate questions,” Higginson, a Barack Obama appointee, wrote. “Can felons from the other eleven circuits now flood the Gulf Coast to rearm themselves? Can—or must—all § 922(g) defendants in this Circuit now individually challenge their convictions on these grounds? What is the retroactive effect, if any, of this decision for the people in our Circuit already convicted under this statute?”

“More broadly, what would come of the countless other federal statutes hinging on Congress’s well-settled commerce authority?” he added. “Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons? Past the Title 18 level, do we lose regulations on financial transactions? On intellectual property? On endangered species?”

What the circuit ultimately decides in its en banc review remains to be seen, and oral arguments have yet to be scheduled. Yet the mere reopening of this constitutional question alone puts the legal world on notice. Given the stakes, it would not be surprising to see the case land on the Supreme Court’s doorstep someday soon either way it turns out.