Every few years, in between collecting luxury gifts and vacations, Justice Thomas slaps together a concurrence literally no other justice would even consider as a prank, explaining that some load-bearing pillar of constitutional order is, on closer inspection, unconstitutional. Historically, nothing ever came of these fever dreams because few judges would jeopardize their reputations endorsing these theories. But now we have the 2026 Edition of the Fifth Circuit, who have never met one of Thomas’s novel constitutional law bouquets that they aren’t willing to tackle every other bridesmaid to catch.
And so the Fifth Circuit just agreed to take up en banc a heroin trafficker’s gun charge under the theory that maybe federal law isn’t real.
In United States v. Hemani, the Supreme Court unanimously held that the government couldn’t prosecute Ali Hemani under 18 U.S.C. § 922(g)(3) — the ban on gun possession by unlawful drug users — just because he smokes weed a few times a week. As Justice Gorsuch explained, the Framers were blitzed out of their minds and would never consider harshing a gun owner’s mellow. He didn’t use those exact words, but… that description isn’t far off.
Justice Thomas refused to leave well enough alone and took the opportunity to muse that § 922(g) is unconstitutional because the Commerce Clause — the provision underlying roughly 99 percent of federal law — is a mirage. “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.’” For this proposition, Thomas cited… his own dissent from a 15-year-old cert denial. Most jurists would pause and think “won’t I look like a moron if I assert an earth-shaking constitutional principle without a single cite to an opinion of the Court?”
To this, Clarence Thomas says, “hold my Diet Coke.”
Section 922(g) reaches guns “in or affecting commerce,” to the extent manufacturers send them across state lines as they market and sell them across the country. Thomas thinks that mere possession of a thing that once traveled isn’t commerce, and letting Congress regulate it would, quoting his own Lopez concurrence, empower the feds to “regulate marriage, littering, or cruelty to animals, throughout the 50 States.”
Well, except we don’t have cross-country industries built upon selling marriage, littering, and animal cruelty. And to the extent that we do have industries like that, the federal government DOES regulate the mail-order bride business, all manner of waste disposal, and running dog fighting rings. All of which is to say, once a product is sold across state lines, the federal government absolutely regulates it.
Almost the entire United States Code runs on that same Commerce Clause plumbing. Which is to say, there’s not really any path to striking § 922(g) without removing the Jenga block supporting American society. It would knock out everything from civil rights — which probably wouldn’t bother the majority — to the predictable regulatory environment that maintains a global economic superpower. The reason no other justice joined Thomas’s concurrence is that he was casually musing about pulling the eject lever on the American experiment.
And his wild rambling would’ve remained safely contained in the sealed biohazard containment of a solo concurrence but for the Fifth Circuit. The bouquet analogy above fits so well because the judges on that circuit seem especially fixated on their position as Supreme Court bridesmaids and never brides. To that end, they’re much more thirsty than the rest of the appellate landscape, hoping to generate the sort of radical right-wing affection that gets them added to a future SCOTUS short list. For the Fifth Circuit, Clarence Thomas’s concurrences and dissents are basically creative writing prompts for dreaming up dystopian alternative legal history.
Enter Curtis Squire, a Louisiana heroin trafficker who pleaded guilty to § 922(g)(1) and, in his plea, admitted the gun and ammunition had “traveled in interstate commerce.” Three weeks before Hemani, a Fifth Circuit panel had rejected Squire’s Commerce Clause argument in a single footnote as foreclosed by decades of binding precedent.
But now, barely a month after Thomas published his musings — the circuit agreed to vacate the panel opinion and take up the case en banc. This move not-so-subtly reframed what had been an as-applied Second Amendment claim into a facial challenge to the Commerce Clause itself.
Judge Higginson dissented from the grant and delivered a succinct “are you fucking kidding me?” dissent.
That impact is hard to overstate. In the context of § 922 convictions alone, such a holding would raise several immediate questions. Can felons from the other 11 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? 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?
All told, this case hazards untold consequences for federal law.
Right. Merely taking up this case is the constitutional law equivalent of drunkenly handling dynamite. Which, for the record, is also regulated under the Commerce Clause.
“For these reasons, lower court judges have for decades concluded that under this Court’s precedents, § 922(g) exceeds Congress’s power to regulate interstate commerce,” Justice Thomas wrote in Hemani. Thomas then directs the reader’s attention for his “lower court judges have for decades concluded” claim to a series of individual dissents, oblivious to the fact that serving up a buffet of dissenting opinions only succeeds in reminding us that lower courts have for decades explicitly rejected his proposition.
And check out the judges peddling this assertion. There’s Judge Ho, dissenting from denial of rehearing in Seekins and Judge Willett in Bonner — two Fifth Circuit members involved in today’s decision. So a pair of Fifth Circuit judges proffer a loony departure from precedent, Thomas cites them to establish the theory, they then point to Thomas citing their outlier opinion as proof that it’s real. That’s less an exploration of legal norms and just an ouroboros of asininity. Judge Mizelle also gets a nod for her opinion in Storey, which is worth noting to the extent that all three of these are Trump judges, doing serious violence to the “for decades” description. Even the pair of supposedly on-point opinions from 1996 he cites — his only hook to “decades” are both dissents that withered on the legal vine.
But most damning is Higginson pointing out that this question goes “beyond our authority as an inferior court.” Whatever the Fifth Circuit’s judges think of §922(g) — or federal law generally — their proper role is to dutifully affirm the conviction and let Squire take his case to the Supreme Court if he wants. This would prove fruitless since, again, no justice but Clarence Thomas thinks this theory deserves more merit than scrawlings on a bathroom wall. It flips the appellate process on its head to have appellate courts adopting novel constitutional theories and putting the onus on the Supreme Court to adopt the lower court’s partisan fan fiction.
On the other hand, forcing the Supreme Court to take up a crazy opinion just to strike it down guarantees we spend the next year talking about the Fifth Circuit and the judges competing to write the most over-the-top defense of radical ideology. And that’s what these Supreme Court bridesmaids want… constant attention. Maintaining constitutional order is a subsidiary concern.
Earlier: Justice Gorsuch: Originalism Means Remembering That The Founders Knew How To F-ing Party
The post To Help Heroin Trafficker Keep His Gun, Fifth Circuit Considers ‘What If We Got Rid Of All Federal Laws?’ appeared first on Above the Law.
Every few years, in between collecting luxury gifts and vacations, Justice Thomas slaps together a concurrence literally no other justice would even consider as a prank, explaining that some load-bearing pillar of constitutional order is, on closer inspection, unconstitutional. Historically, nothing ever came of these fever dreams because few judges would jeopardize their reputations endorsing these theories. But now we have the 2026 Edition of the Fifth Circuit, who have never met one of Thomas’s novel constitutional law bouquets that they aren’t willing to tackle every other bridesmaid to catch.
And so the Fifth Circuit just agreed to take up en banc a heroin trafficker’s gun charge under the theory that maybe federal law isn’t real.
In United States v. Hemani, the Supreme Court unanimously held that the government couldn’t prosecute Ali Hemani under 18 U.S.C. § 922(g)(3) — the ban on gun possession by unlawful drug users — just because he smokes weed a few times a week. As Justice Gorsuch explained, the Framers were blitzed out of their minds and would never consider harshing a gun owner’s mellow. He didn’t use those exact words, but… that description isn’t far off.
Justice Thomas refused to leave well enough alone and took the opportunity to muse that § 922(g) is unconstitutional because the Commerce Clause — the provision underlying roughly 99 percent of federal law — is a mirage. “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.’” For this proposition, Thomas cited… his own dissent from a 15-year-old cert denial. Most jurists would pause and think “won’t I look like a moron if I assert an earth-shaking constitutional principle without a single cite to an opinion of the Court?”
To this, Clarence Thomas says, “hold my Diet Coke.”
Section 922(g) reaches guns “in or affecting commerce,” to the extent manufacturers send them across state lines as they market and sell them across the country. Thomas thinks that mere possession of a thing that once traveled isn’t commerce, and letting Congress regulate it would, quoting his own Lopez concurrence, empower the feds to “regulate marriage, littering, or cruelty to animals, throughout the 50 States.”
Well, except we don’t have cross-country industries built upon selling marriage, littering, and animal cruelty. And to the extent that we do have industries like that, the federal government DOES regulate the mail-order bride business, all manner of waste disposal, and running dog fighting rings. All of which is to say, once a product is sold across state lines, the federal government absolutely regulates it.
Almost the entire United States Code runs on that same Commerce Clause plumbing. Which is to say, there’s not really any path to striking § 922(g) without removing the Jenga block supporting American society. It would knock out everything from civil rights — which probably wouldn’t bother the majority — to the predictable regulatory environment that maintains a global economic superpower. The reason no other justice joined Thomas’s concurrence is that he was casually musing about pulling the eject lever on the American experiment.
And his wild rambling would’ve remained safely contained in the sealed biohazard containment of a solo concurrence but for the Fifth Circuit. The bouquet analogy above fits so well because the judges on that circuit seem especially fixated on their position as Supreme Court bridesmaids and never brides. To that end, they’re much more thirsty than the rest of the appellate landscape, hoping to generate the sort of radical right-wing affection that gets them added to a future SCOTUS short list. For the Fifth Circuit, Clarence Thomas’s concurrences and dissents are basically creative writing prompts for dreaming up dystopian alternative legal history.
Enter Curtis Squire, a Louisiana heroin trafficker who pleaded guilty to § 922(g)(1) and, in his plea, admitted the gun and ammunition had “traveled in interstate commerce.” Three weeks before Hemani, a Fifth Circuit panel had rejected Squire’s Commerce Clause argument in a single footnote as foreclosed by decades of binding precedent.
But now, barely a month after Thomas published his musings — the circuit agreed to vacate the panel opinion and take up the case en banc. This move not-so-subtly reframed what had been an as-applied Second Amendment claim into a facial challenge to the Commerce Clause itself.
Judge Higginson dissented from the grant and delivered a succinct “are you fucking kidding me?” dissent.
That impact is hard to overstate. In the context of § 922 convictions alone, such a holding would raise several immediate questions. Can felons from the other 11 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? 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?
All told, this case hazards untold consequences for federal law.
Right. Merely taking up this case is the constitutional law equivalent of drunkenly handling dynamite. Which, for the record, is also regulated under the Commerce Clause.
“For these reasons, lower court judges have for decades concluded that under this Court’s precedents, § 922(g) exceeds Congress’s power to regulate interstate commerce,” Justice Thomas wrote in Hemani. Thomas then directs the reader’s attention for his “lower court judges have for decades concluded” claim to a series of individual dissents, oblivious to the fact that serving up a buffet of dissenting opinions only succeeds in reminding us that lower courts have for decades explicitly rejected his proposition.
And check out the judges peddling this assertion. There’s Judge Ho, dissenting from denial of rehearing in Seekins and Judge Willett in Bonner — two Fifth Circuit members involved in today’s decision. So a pair of Fifth Circuit judges proffer a loony departure from precedent, Thomas cites them to establish the theory, they then point to Thomas citing their outlier opinion as proof that it’s real. That’s less an exploration of legal norms and just an ouroboros of asininity. Judge Mizelle also gets a nod for her opinion in Storey, which is worth noting to the extent that all three of these are Trump judges, doing serious violence to the “for decades” description. Even the pair of supposedly on-point opinions from 1996 he cites — his only hook to “decades” are both dissents that withered on the legal vine.
But most damning is Higginson pointing out that this question goes “beyond our authority as an inferior court.” Whatever the Fifth Circuit’s judges think of §922(g) — or federal law generally — their proper role is to dutifully affirm the conviction and let Squire take his case to the Supreme Court if he wants. This would prove fruitless since, again, no justice but Clarence Thomas thinks this theory deserves more merit than scrawlings on a bathroom wall. It flips the appellate process on its head to have appellate courts adopting novel constitutional theories and putting the onus on the Supreme Court to adopt the lower court’s partisan fan fiction.
On the other hand, forcing the Supreme Court to take up a crazy opinion just to strike it down guarantees we spend the next year talking about the Fifth Circuit and the judges competing to write the most over-the-top defense of radical ideology. And that’s what these Supreme Court bridesmaids want… constant attention. Maintaining constitutional order is a subsidiary concern.
Earlier: Justice Gorsuch: Originalism Means Remembering That The Founders Knew How To F-ing Party
