{"database": "openregs", "table": "crs_reports", "rows": [["LSB11490", "The Commerce Clause and Federal Firearms Prohibitions", "2026-10-16T04:00:00Z", "2026-10-20T11:37:57Z", "Active", "Posts", "Dave S. Sidhu", "Judicial Branch, Jurisprudence, The Supreme Court of the United States, Commerce Clause, Firearms & Regulation", "\u201cMost\u201d modern federal criminal laws are predicated on Congress\u2019s power to regulate interstate commerce. Federal firearms offenses are no different in this respect. For example, 18 U.S.C. \u00a7 922(g)(1), which prohibits felons from possessing firearms \u201cin or affecting commerce,\u201d stems from Congress\u2019s Commerce Clause power. The Supreme Court has interpreted the statutory precursor to \u00a7 922(g)(1) to require that the government prove that the firearm has a \u201crequisite nexus\u201d with interstate commerce. Federal appeals courts have uniformly held what was perhaps \u201cimplicit\u201d in the Court\u2019s cases: that the felon-in-possession prohibition is a valid exercise of Congress\u2019s authority under the Commerce Clause.\nJustice Thomas, federal judges, and scholars have expressed serious doubt, however, as to the soundness of these and similar constitutional conclusions, suggesting that the felon-in-possession ban and other federal restrictions on firearms possession exceed Congress\u2019s authority under the Commerce Clause. On July 21, 2026, in Squire v. United States, a majority of the active judges on the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) agreed that the full court would decide whether the Commerce Clause is a proper source of authority for \u00a7 922(g)(1). One judge dissented from the order granting a rehearing, warning that to invalidate \u00a7 922(g)(1) as unconstitutional would by logical extension \u201cimperil much of the United States Code\u201d that rests on the Commerce Clause and \u201cwould mark the start of a new, severely contracted Commerce Clause era.\u201d \nThis Sidebar describes the relationship between the Commerce Clause and federal firearms laws to aid in an understanding of the constitutional issues to be considered by the Fifth Circuit in the Squire case. The Sidebar begins with an overview of the Supreme Court\u2019s Commerce Clause jurisprudence. It then addresses the Commerce Clause in the context of federal firearms laws, paying specific attention to judicial concerns with the constitutionality of 18 U.S.C. \u00a7\u00a7 922(g)(1) and 922(o), the federal prohibition on the possession of machineguns. The Sidebar closes with considerations for Congress. \nCommerce Clause Jurisprudence\nThe Supreme Court has stressed that every law enacted by Congress must be traced to a power in the Constitution. The same is true of federal criminal laws; the Court has recognized that Congress \u201ccannot punish felonies generally\u201d but instead \u201cmay enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce.\u201d Article I, Section 8, Clause 3 of the Constitution, referred to as the \u201cthe Commerce Clause,\u201d grants Congress the power \u201cto regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.\u201d Federal courts have observed that the Commerce Clause is the constitutional source of authority for \u201cmost\u201d federal offenses. Such is the case for federal firearms offenses: The primary federal \u201ccriminal\u201d statute applicable to firearms, the Gun Control Act (GCA), is predicated on the Commerce Clause. \nThe scope of the Commerce Clause power has \u201cevolved over time\u201d to include three general areas. In 1995, the Supreme Court in United States v. Lopez recognized that Congress may invoke the Commerce Clause to regulate \u201cthree broad categories of activity\u201d: (1) the \u201cchannels of interstate commerce,\u201d or what interstate commerce moves through (e.g., highways, railroads, navigable waterways, or airspace); (2) the \u201cinstrumentalities of interstate commerce, or persons or things in interstate commerce,\u201d or what travels on the channels of interstate commerce (e.g., airplanes, trucks, or trains, as well as people or objects); and (3) \u201cactivities that substantially affect interstate commerce,\u201d that is, intrastate activities that, when taken in the aggregate, would substantially affect interstate commerce (e.g., limiting the intrastate, personal production of a good to stabilize national prices for that good). Applying the stated scope of the Commerce Clause, the Court in Lopez struck down a federal law that prohibited the possession of a gun in a school zone, reasoning that the law regulated a purely local, noneconomic activity. In its discussion, the Court appears to have \u201crelied heavily\u201d on the economic/noneconomic distinction, observing that under the third category the Court has upheld \u201cregulations of activities that arise out of or are connected with a commercial transaction,\u201d further recounting that the Court has \u201cupheld a wide variety of congressional Acts regulating intrastate economic activity where [it has] concluded that the activity substantially affected interstate commerce.\u201d The Court said the \u201cpattern is clear\u201d: \u201cWhere economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.\u201d As to the federal law in question, the Court explained that the third category does not extend to \u201ca criminal statute that by its terms has nothing to do with commerce or any sort of economic enterprise,\u201d or to a statute that is \u201cnot an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.\u201d \nSimilarly, in 2000, in United States v. Morrison, the Court invalidated a provision of the Violence Against Women Act that created a federal civil remedy for victims of gender-motivated violence, as the Court found that such violence is not an economic activity. The Court in Morrison compiled four factors that may help draw the distinction between economic/noneconomic activities, including (1) whether the regulated \u201cactor\u201d or the regulated \u201cconduct\u201d \u201chas a commercial character,\u201d or whether the statutory \u201cpurpose\u201d has an \u201cevident commercial nexus\u201d; (2) the existence of a jurisdictional hook; (3) congressional findings; and (4) the link between the activity and interstate commerce. Quoting Lopez, Morrison also explained that federalism undergirds the inquiry into the economic nature of the regulated activity: \u201cWere the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur.\u201d\nIn 2005, in Gonzalez v. Raich, the Court upheld the application of the federal Controlled Substances Act to growing marijuana for personal, intrastate use because Congress had a \u201crational basis\u201d for concluding that such cultivation and consumption would impact the supply and demand in the national market for cannabis. According to the Court, the regulated market\u2019s federal illegality did not matter for purposes of the statute\u2019s constitutionality. \nIn 2012, concluding that the Affordable Care Act\u2019s individual mandate could not be upheld pursuant to the Commerce Clause, in National Federation of Independent Business (NFIB) v. Sebelius, the Court determined that Congress cannot compel individuals to engage in an economic activity (i.e., to purchase health insurance or face a fine) and thereby bring these individuals within the ambit of the Commerce Clause. Similarly, the Court explained that Congress cannot regulate inactivity, even if the individual choice to not do something (i.e., to not purchase health insurance) has economic consequences (i.e., externalized and increased health care costs).\nDebate Regarding the Commerce Clause as a Constitutional Basis for Certain Federal Firearms Regulations\nThe Felon-in-Possession Prohibition \nFederal law, at 18 U.S.C. \u00a7 922(g), prohibits nine classes of individuals, including felons, from possessing firearms \u201cin or affecting commerce.\u201d The Supreme Court has recognized that this \u201cin or affecting commerce\u201d language and similar formulations, referred to as a \u201cjurisdictional hook,\u201d \u201csignal Congress\u2019 intent to invoke its full authority under the Commerce Clause.\u201d \nIn 1971, in United States v. Bass, the Supreme Court rejected a Commerce Clause challenge to the predecessor statute to \u00a7 922(g)(1), which subjected any felon who \u201creceives, possesses, or transports\u201d a firearm \u201cin commerce or affecting commerce\u201d to criminal punishment. The Court read the \u201cin commerce or affecting commerce\u201d language to apply to all three elements of the offense, including possession and receipt, to alleviate federalism concerns. The Court interpreted the language to mean that the government must prove that the firearm \u201cpreviously traveled in interstate commerce.\u201d In 1977, the Court in Scarborough v. United States clarified that, in enacting this clause, there is \u201cno indication that Congress intended to require any more than the minimal nexus that the firearm have [sic] been, at some time, in interstate commerce.\u201d According to these cases, the interstate movement of the firearm need not be contemporaneous with the defendant\u2019s possession of the firearm. \nSome federal appeals court judges have opined that there is a \u201ctension\u201d and a \u201cfundamental and irreconcilable conflict\u201d between Scarborough\u2014allowing Congress to regulate any firearm that has \u201cat some time\u201d traveled between states\u2014and Lopez and its progeny\u2014which insist that the regulation fit within at least one of three categories of activities. Federal courts also have noticed that some circuits adhere to Scarborough, while others apply Lopez. Courts using the former approach observe that the Supreme Court has not overruled Scarborough. For instance, Lopez did not cite Scarborough, let alone place Scarborough in a negative light. Moreover, these courts have explained that Scarborough is the appropriate case to use when the statute at issue has an express jurisdictional hook, as the statute under review in Scarborough had such language and the law examined in Lopez did not. Courts following Scarborough in other contexts have stated that a statute would necessarily be read with the Commerce Clause in mind and resultingly construed to fall within its constitutional boundaries.  \nAt the same time, some judges in concurring and dissenting opinions have questioned the vitality of Scarborough. One question arises out of the temporal separation between when the firearm may have crossed state lines and when the firearm was possessed. On this score, a judge raised the concern that Scarborough would enable Congress to criminalize firearm possession if the \u201cfirearm had, perhaps decades previously before the charged possessor was even born, fortuitously traveled in interstate commerce.\u201d As an example, a circuit upheld a \u00a7 922(g)(1) prosecution where the firearm had \u201ccrossed into [the state] after its manufacture at some indeterminate moment in time\u2014possibly years before it was discovered in [the defendant\u2019s] possession.\u201d Some have suggested that Scarborough may disturb the federal-state balance by permitting Congress to assume state police powers: As one judge put it, under Scarborough\u2019s logic, Congress could \u201cenact a federal law requiring students in private schools to read their homework assignments, so long as the government establishes that the textbooks were published in another state.\u201d In addition, some Justices have argued that Scarborough turned on statutory interpretation and thus should not govern a constitutional Commerce Clause analysis. Still other judges have reasoned that to use Scarborough is to render the Lopez framework \u201csuperfluous\u201d and to reduce the constitutional inquiry to a simple check for a jurisdictional hook. \nFor courts that analyze \u00a7 922(g)(1) under Lopez, the statute may fall within the case\u2019s first category on the theory that Congress sought to keep the channels of interstate commerce \u201cclear of firearms\u201d possessed by felons. Critics have resisted this proposition for at least three reasons. First, they argue that Lopez rejected the argument that a federal statute prohibiting firearm possession in a school zone could be justified under the first category, finding the statute \u201cis not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce.\u201d Judges upholding \u00a7 922(g)(1) have found the first category to be \u201cnot relevant\u201d in its constitutional analysis. Second, Justice Thomas has expressed concern with the potential temporal gap between when the firearm traversed a channel of interstate commerce and when the defendant has possessed that firearm; as that gap grows, the interstate character of the regulation and the justification for federal involvement lessen. Third, a circuit court has observed that a federal statute prohibiting felons from possessing body armor \u201cin\u201d commerce did not, under Lopez, regulate a channel of interstate commerce because the statute \u201cis not directed at the movement of body armor through the channels\u201d and instead \u201cprohibits the stationary and entirely intrastate act of possession of body armor.\u201d Some judges have found this analysis to be persuasive in the context of \u00a7 922(g)(1).\nWith \u00a7 922(g)(1) expressly prohibiting felons from possessing a firearm \u201cin\u201d commerce, some courts have posited that the second category of Lopez\u2014authorizing Congress to regulate goods or things in interstate commerce\u2014is the applicable source of constitutional authority for the statute. Others disagree, pressing arguments related to the intrastate character of firearm possession, costs to federalism, and the specialized meaning of an \u201cinstrumentality\u201d of interstate commerce. First, some argue that the firearm\u2019s existence \u201cin\u201d interstate commerce could occur many years prior to the firearm possession, yet the harm addressed by \u00a7 922(g)(1) is possession of the firearm by a felon and therefore \u00a7 922(g)(1) at bottom criminalizes an intrastate act\u2014an argument made by Justice Thomas with respect to \u00a7 922(g)(1) and judges in other federal criminal contexts. Second, according to an expert on firearm manufacturing and distribution, 95% of firearms cross state lines; put differently, \u201cfew\u201d firearms stay within a state. These individuals argue that the \u201cin\u201d interstate commerce requirement\u2014if read only to ensure that a firearm has crossed state lines at some point\u2014would not meaningfully limit the scope of congressional power under the Commerce Clause, at the expense of state rights. Third, \u00a7 922(g)(1) may not involve an instrumentality as that term is understood by some courts. In a case on the constitutionality of a federal carjacking offense, a circuit court held that Congress can regulate intrastate instrumentalities of interstate commerce where the instrumentalities have the capability of \u201ctransporting goods and people across state lines,\u201d but a firearm, unlike a vehicle, train, or plane, does not have an \u201cinherently mobile\u201d character. In addition, according to Justice Thomas, a regulation of an instrumentality of interstate commerce requires proof that the possession poses a \u201crisk to interstate buying, selling, shipping, or transportation\u201d; \u00a7 922(g)(1) does not require this showing. In the body armor case, the circuit court determined that the second Lopez category only permits Congress to regulate activities that \u201cthreaten\u201d instrumentalities of commerce and \u201cthings actually being moved in interstate commerce, not all people and things that have ever moved across state lines\u201d\u2014reasoning that concurring judges favorably cited in a \u00a7 922(g)(1) case. \nWith respect to whether \u00a7 922(g)(1) fits the Lopez third category, on one hand, Lopez held that \u201c[t]he possession of a gun in a local school zone is in no sense an economic activity,\u201d such as purchasing, selling, transporting, producing, or consuming a thing. The same logic may apply to firearm possession generally. It may especially apply to the defendant in Squire, who possessed a firearm in his home, the defense of which lies at the core of the right to keep and bear arms. A finding that possession is not economic may end the constitutional inquiry; a circuit court argued that aggregation of economic effects is appropriate only when the underlying activity is economic. The Lopez Court also cautioned against stacking inferences to find that an activity substantially affects interstate commerce, and here possession may be seen as a step removed from production, an economic exchange, or other commercial conduct. \nOn the other hand, courts have found that \u201c[p]rohibiting possession by felons limits the market for firearms, and discourages shipping, transporting, and receiving firearms in or from interstate commerce,\u201d adding that firearms possession facilitates interstate firearms trafficking, \u201ca clearly commercial activity.\u201d Likewise, a circuit court upheld the constitutionality of a federal law prohibiting juveniles from possessing a handgun on similar grounds, writing that the ban \u201cis an essential part of a regulatory scheme . . . that directly and substantially regulates interstate handgun markets by excluding juveniles from them.\u201d Further, the Supreme Court has emphasized that, under the third category, Congress need only have a rational basis to believe the regulated activity will substantially affect interstate commerce\u2014a \u201cmodest\u201d bar for congressional action. It remains to be seen how the Fifth Circuit will respond to these and other prospective arguments.\nThe Prohibition on the Possession of Machineguns \nFederal law, at 18 U.S.C. \u00a7 922(o), prohibits the possession of machineguns. Unlike \u00a7 922(g)(1), \u00a7 922(o) lacks a jurisdictional hook. Every circuit to have confronted the issue has found that \u00a7 922(o) is an appropriate exercise of the Commerce Clause. Several Fifth Circuit judges in dissent have argued, however, that \u00a7 922(o) exceeds this source of authority. They have stated that \u00a7 922(o) is a \u201cclone\u201d of the statute invalidated in Lopez and that \u00a7 922(o) should suffer the same constitutional fate. In contending that \u00a7 922(o) falls short under Lopez, these judges have added that \u00a7 922(o) extends to intrastate possession of machineguns and thereby \u201cintrudes upon the traditional police powers of the states.\u201d Private possession is not economic and \u201cdoes not involve a market activity,\u201d they have argued. Finally, they lamented the absence of a limiting principle to the market regulation approach: Criminalizing possession to impact \u201cthe demand side of the market can be applied to the possession of anything.\u201d   \nConsiderations for Congress\nThe Fifth Circuit\u2019s Squire case could impact the constitutionality of many federal firearms laws, and its reasoning could apply to other federal statutes criminalizing possession and other federal statutes grounded in the Commerce Clause power. Congress may, in anticipation of or as a result of Squire, add or strengthen the jurisdictional hook in federal firearms statutes. Congress also may seek to await two pending consolidated Supreme Court cases on whether certain assault-weapon bans comply with the Second Amendment; while these cases involve another constitutional provision, the Court may offer insight into its impressions of the constitutional basis for federal firearms regulations.", "https://www.congress.gov/crs_external_products/LSB/PDF/LSB11490/LSB11490.1.pdf", "https://www.congress.gov/crs_external_products/LSB/HTML/LSB11490.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["LSB11490"], "units": {}, "query_ms": 0.24857698008418083, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}