Bonner and the Fifth Circuit’s Across-the-Board Foreclosure of § 922(g)(1) Challenges—With a Concurrence Urging Reexamination of Commerce Clause and Bruen Methodology

Case: United States v. Bonner, No. 24-60601 (5th Cir. Nov. 13, 2025) (per curiam, unpublished)
Court: U.S. Court of Appeals for the Fifth Circuit
Panel: Judges Barksdale, Willett, and Duncan; concurrence by Judge Willett, joined by Judge Duncan

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Introduction

In United States v. Bonner, the Fifth Circuit summarily affirmed a felon-in-possession conviction under 18 U.S.C. § 922(g)(1), holding that every constitutional challenge the defendant advanced—Second Amendment (facial and as-applied), vagueness, Commerce Clause, and Equal Protection—is foreclosed by existing circuit precedent. The per curiam opinion is unpublished, but it draws together—and reaffirms—the Fifth Circuit’s published holdings that have crystallized in the post-Bruen era. The court also notes the defendant’s separate suppression claim is barred by an appellate waiver.

The true significance of Bonner lies in two parts. First, as a practical matter for district courts and litigants within the Fifth Circuit, the decision underscores that all principal lines of attack on § 922(g)(1) are presently closed by binding authority. Second, Judge Willett’s detailed concurrence questions whether the statute as applied by federal courts rests on solid constitutional footing—both as a matter of enumerated-powers doctrine (Commerce Clause) and in the Fifth Circuit’s post-Bruen Second Amendment methodology. The concurrence invites either en banc reconsideration or Supreme Court clarification, especially in light of two Second Amendment cases pending before the Court.

Summary of the Opinion

Arnett Jackson Bonner pleaded guilty to violating § 922(g)(1). His predicate felonies include drug trafficking and a prior felon-in-possession offense. On appeal, he asserted:

• Second Amendment violations, both facial and as-applied (relying on New York State Rifle & Pistol Ass’n, Inc. v. Bruen);
• Vagueness;
• Commerce Clause (exceeding Congress’s power); and
• Equal Protection.

The panel held that each challenge is foreclosed by Fifth Circuit precedent:

• United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025), forecloses facial Second Amendment and Commerce Clause challenges.
• United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), forecloses as-applied Second Amendment challenges for defendants with felony drug-trafficking convictions, finding that disarming drug traffickers is consistent with the Nation’s history and tradition.
• United States v. Branson, 139 F.4th 475 (5th Cir. 2025), forecloses unpreserved vagueness challenges to § 922(g)(1).
• United States v. Goody, 143 F.4th 617 (5th Cir. 2025) (per curiam), forecloses Equal Protection challenges to § 922(g)(1).

The court thus affirmed the conviction. A suppression issue Bonner initially raised on appeal was conceded as waived by his plea agreement.

Judge Willett concurred, agreeing that precedent compels affirmance, but expressing deep skepticism on two fronts: (1) whether § 922(g)(1) as federally interpreted satisfies the Commerce Clause, and (2) whether the Fifth Circuit’s Bruen analysis has strayed by relying on non-firearm historical analogues and by looking beyond the statute’s triggering facts to sustain prosecutions.

Key Holdings at a Glance

• Within the Fifth Circuit, § 922(g)(1) survives facial Second Amendment and Commerce Clause attacks (Diaz).
• As-applied Second Amendment challenges are rejected at least for defendants with felony drug-trafficking predicates (Kimble).
• Vagueness challenges to § 922(g)(1), when unpreserved, fail (Branson).
• Equal Protection challenges to § 922(g)(1) fail (Goody).
• Unpublished disposition; no new binding rule is created—but the decision consolidates and applies a suite of published precedents.

Analysis

Precedents Cited and Their Role

• Second Amendment foundation:
  • New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022): Reoriented Second Amendment analysis to a history-and-tradition test, placing the burden on the government to justify modern regulations by showing consistency with historical firearm regulation.
  • United States v. Rahimi, 602 U.S. 680 (2024): Applied Bruen to § 922(g)(8) (domestic-violence restraining orders), emphasizing the need for analogues targeting misuse of firearms and requiring “relevant similarity” in how a law burdens the right.
  • United States v. Diaz, 116 F.4th 458 (5th Cir. 2024): A cornerstone Fifth Circuit decision rejecting facial Second Amendment attacks on § 922(g)(1). The Supreme Court denied certiorari in 2025, leaving Diaz binding within the circuit.
  • United States v. Kimble, 142 F.4th 308 (5th Cir. 2025): Rejected an as-applied Second Amendment challenge by a defendant with a prior drug-trafficking felony, holding that disarming drug traffickers aligns with historical tradition.
• Commerce Clause / enumerated-powers backdrop:
  • United States v. Lopez, 514 U.S. 549 (1995): Identified three categories of permissible Commerce Clause regulation; mere possession of a firearm typically fits uneasily within them.
  • United States v. Morrison, 529 U.S. 598 (2000): Reinforced the distinction between what is truly national and truly local; skeptical of aggregating noneconomic activity to support federal criminalization.
  • NFIB v. Sebelius, 567 U.S. 519 (2012): Reaffirmed limits on the Commerce Clause, though in the healthcare mandate context; cited by the concurrence to underscore modern Commerce Clause constraints.
  • Scarborough v. United States, 431 U.S. 563 (1977): Interpreted § 922(g)’s predecessor to require only a “minimal nexus”—the firearm must at some time have moved in interstate commerce. The concurrence argues Scarborough resolved statutory construction, not constitutional validity.
  • Fifth Circuit applications: United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) (per curiam) (evidence that a gun was manufactured in one state and possessed in another suffices); United States v. Kuban, 94 F.3d 971 (5th Cir. 1996) (reading Scarborough as barring Commerce Clause challenges to § 922(g)(1)).
  • Other supportive authority: GDF Realty Invs. v. Norton, 326 F.3d 622 (5th Cir. 2003) (aggregation is appropriate chiefly for economic activity); United States v. Patton, 451 F.3d 615 (10th Cir. 2006) (analyzing noneconomic possession under Lopez).
• Other constitutional doctrines:
  • United States v. Goody, 143 F.4th 617 (5th Cir. 2025) (per curiam): Equal Protection challenge rejected.
  • United States v. Branson, 139 F.4th 475 (5th Cir. 2025): Unpreserved vagueness challenge rejected.
  • Rehaif v. United States, 588 U.S. 225 (2019): Knowledge-of-status requirement in § 922(g) prosecutions; noted in the concurrence as underscoring that no knowledge of interstate nexus is required.
• Methodological/fair-notice references in the concurrence:
  • Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 170 (2004) (citing Webster v. Fall, 266 U.S. 507 (1925)): Questions that “lurk” unaddressed do not become precedent.
  • Sorrell v. IMS Health Inc., 564 U.S. 552 (2011): Distinguishes direct from incidental burdens (used by the concurrence to caution against analogies that only incidentally touch firearms).
  • Historical and structural references: The Federalist No. 45 (Madison); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821); Brutus Essays XII and XV; Oregon v. Ice, 555 U.S. 160 (2009) (states as “laboratories”).
  • Fifth Circuit cautionary decisions: United States v. Seekins, 52 F.4th 988 (5th Cir. 2022) (Ho, J., dissenting from denial of rehearing en banc), urging reconsideration of the Commerce Clause basis for § 922(g)(1).
  • Pending Supreme Court matters noted: United States v. Hemani (No. 24-40137; cert. granted, No. 24-1234) and Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), cert. granted, No. 24-1046.

Legal Reasoning

The panel’s per curiam opinion is straightforward: under the Fifth Circuit’s intra-circuit rule, a three-judge panel cannot overrule published circuit precedent. Diaz forecloses facial Second Amendment and Commerce Clause attacks; Kimble forecloses the as-applied claim for a drug-trafficking felon; Goody and Branson close the Equal Protection and vagueness doors. Bonner preserved some issues solely to seek further review, but precedent compelled affirmance. This is the architecture of stare decisis at the panel level.

Judge Willett’s concurrence, however, provides a substantive roadmap for future reexamination:

1. Enumerated powers/Commerce Clause critique. The concurrence questions whether § 922(g)(1) as interpreted by federal courts is a permissible exercise of Congress’s limited, enumerated powers. Starting with first principles—that Congress lacks a general police power and cannot “punish felonies generally”—the concurrence challenges heavy reliance on Scarborough’s “minimal nexus” (any past interstate travel of the firearm), especially where the Commerce Clause question “was not at issue” in Scarborough. Under Lopez and Morrison, simple possession is noneconomic and cannot be aggregated to produce a “substantial effect” on interstate commerce. Reading “in or affecting commerce” to mean “ever crossed state lines” risks converting a statutory phrase into a jurisdictional talisman that dispenses with real limits on federal power. The concurrence also warns against bootstrapping constitutional holdings from mere statutory decisions or from implications that “lurk” in prior cases.
2. Second Amendment methodology critique under Bruen/Rahimi. The concurrence identifies two methodological drifts:
   • Overreliance on non-firearm historical analogues. Bruen and Rahimi look to “this Nation’s historical tradition of firearm regulation” and treat as “important” that analogues target firearm misuse. By leaning on non-firearm laws (e.g., capital punishment for felonies or general surety laws untethered to firearm misuse), the concurrence argues the analysis dilutes Bruen’s demand for relevant similarity in the way a law burdens the right.
   • Relying on extraneous facts beyond the statute’s triggers. Section 922(g)(1) turns on the historical fact of a prior felony conviction, not on later conduct (e.g., subsequent convictions) or collateral facts (e.g., intoxication at the time of possession). Using such facts to rescue a prosecution risks analyzing a hypothetical statute Congress did not enact. It also sidesteps procedural safeguards, since those facts may never be submitted to a jury under a beyond-a-reasonable-doubt standard.

In essence, the concurrence contends that while panels must follow Diaz, Kimble, Branson, and Goody, future panels and the en banc court should recalibrate the doctrinal compass to remain faithful to Lopez/Morrison/NFIB on the Commerce Clause and to Bruen/Rahimi’s methodological discipline in Second Amendment cases.

Impact

Practically, Bonner signals to litigants and district courts across the Fifth Circuit:

• Second Amendment challenges to § 922(g)(1) are presently foreclosed—both facially (Diaz) and as-applied at least for drug-trafficking felons (Kimble). Defendants may preserve arguments for further review, but panel-level relief is unavailable.
• Vagueness and Equal Protection claims fail under binding circuit authority (Branson, Goody).
• Commerce Clause challenges are foreclosed (Diaz), notwithstanding growing academic and judicial skepticism about the statute’s minimal interstate nexus.

Doctrinally, however, the concurrence is a notable invitation for reexamination:

• Commerce Clause reappraisal. If the Fifth Circuit en banc or the Supreme Court were to revisit Scarborough’s “minimal nexus” approach in light of Lopez and Morrison, the federal government’s burden in proving the interstate commerce element could rise beyond proof that a firearm once crossed state lines.
• Bruen methodology tightening. A shift toward firearm-specific historical analogues that regulate misuse—and away from general or incidental analogies—could narrow the range of historical laws the government may rely upon to justify modern restrictions. Likewise, confining the § 922(g)(1) analysis to the statute’s actual triggers (prior felonies) could limit courts’ ability to sustain convictions based on collateral facts not found by a jury.
• State-federal balance and restoration regimes. The concurrence’s federalism emphasis suggests that states, acting as “laboratories,” may be better positioned to calibrate restoration-of-rights policies for some categories of felons—an area crowded out if § 922(g)(1) serves as a sweeping, one-size-fits-all federal disability.
• Pending Supreme Court cases. The Court’s decisions in Hemani and Wolford may refine Bruen’s analogical reasoning or delineate the limits of permissible historical analogues, with downstream effects on § 922(g)(1) adjudication.

In short, Bonner is both a capstone of the Fifth Circuit’s current § 922(g)(1) jurisprudence and a springboard for potential revisitation, particularly on the Commerce Clause and methodology frontiers.

Complex Concepts Simplified

• Facial vs. as-applied challenge: A facial challenge argues a law is unconstitutional in all its applications. An as-applied challenge concedes the law may be valid generally but unconstitutional as applied to a particular person or set of facts.
• Bruen test (history-and-tradition): The government must show that a modern gun regulation aligns with the Nation’s historical tradition of firearm regulation, with relevant similarity in the law’s justification and in how it burdens the right.
• “Relevantly similar” analogues: Not identical laws from the Founding, but regulations sufficiently close in purpose and burden, especially targeting firearm misuse rather than incidentally touching arms.
• Commerce Clause categories (Lopez): Congress may regulate (1) the channels of interstate commerce, (2) the instrumentalities of commerce and persons or things in commerce, and (3) activities that substantially affect interstate commerce. Pure possession is noneconomic and often falls outside these categories unless tied to a genuine commercial nexus.
• “Minimal nexus” (Scarborough): A judicially recognized, low threshold for the interstate element in federal gun-possession crimes—satisfied if the firearm once moved across state lines. The concurrence questions whether this is sufficient under Lopez/Morrison.
• Aggregation principle: Courts sometimes aggregate the effects of many instances of an activity to judge whether, in the aggregate, it substantially affects interstate commerce. This is ordinarily appropriate for economic activity; aggregation of noneconomic possession is suspect.
• Equal Protection challenge to § 922(g)(1): Typically reviewed under rational-basis scrutiny for felons; the Fifth Circuit has rejected such challenges (Goody).
• Vagueness doctrine: A criminal statute is void for vagueness if it fails to provide ordinary people fair notice of the conduct it punishes or is so standardless that it invites arbitrary enforcement. The Fifth Circuit has rejected unpreserved vagueness attacks on § 922(g)(1) (Branson).
• Knowledge-of-status (Rehaif): The government must prove a defendant knew of his prohibited status (e.g., that he is a felon) at the time of possession, but not that he knew the firearm traveled in interstate commerce.
• Stare decisis at the panel level: A three-judge appellate panel is bound by the circuit’s prior published decisions; any change generally must come from the court en banc or the Supreme Court.
• Direct vs. incidental burdens on rights: A regulation that directly prohibits firearm possession burdens the Second Amendment differently from general laws (e.g., surety or breach-of-the-peace laws) that only incidentally touch gun possession; the concurrence urges courts to keep this distinction central under Bruen/Rahimi.

Conclusion

United States v. Bonner does not announce a new rule, but it consolidates the Fifth Circuit’s current posture: every principal constitutional challenge to § 922(g)(1)—facial Second Amendment, as-applied (at least for drug-trafficking felons), vagueness, Equal Protection, and Commerce Clause—is foreclosed by binding circuit precedent. For practitioners within the circuit, the message is clear: panel-level relief on these theories is unavailable, though issues may be preserved for higher review.

Judge Willett’s concurrence, however, is an important marker. It articulates serious concerns that (1) the statute’s “minimal nexus” approach may exceed Congress’s enumerated powers under the Commerce Clause as understood in Lopez and Morrison, and (2) the Fifth Circuit’s Bruen methodology has strayed by leaning on non-firearm analogues and by relying on facts outside § 922(g)(1)’s own triggering elements. The concurrence calls for doctrinal tightening—either by the full court or by the Supreme Court—especially given the pending Second Amendment cases the Court is poised to decide.

In the broader legal landscape, Bonner underscores the tension between a robust federal felon-disarmament regime and constitutional first principles of both federalism and the original public meaning of the Second Amendment. Whether that tension will be relieved by doctrinal recalibration remains to be seen. For now, within the Fifth Circuit, the law is settled; the debate, as Bonner’s concurrence demonstrates, is not.