Bonner Cements Fifth Circuit Foreclosure of Standard § 922(g)(1) Challenges; Concurrence Flags Commerce Clause and Bruen Methodology Fault Lines

Introduction

In United States v. Bonner, No. 24-60601 (5th Cir. Nov. 14, 2025), a Fifth Circuit panel (Judges Barksdale, Willett, and Duncan) affirmed Arnett Jackson Bonner’s conviction under 18 U.S.C. § 922(g)(1) for possessing a firearm after a felony conviction. Bonner’s underlying felonies included drug trafficking and a prior felon-in-possession offense. On appeal, he mounted a multi-front constitutional attack: a Second Amendment challenge (both facial and as-applied), a vagueness challenge, a Commerce Clause challenge, and an Equal Protection argument.

The per curiam opinion did not blaze new doctrinal trails; instead, it treated the terrain as already charted. Relying on a string of recent Fifth Circuit decisions—United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), United States v. Branson, 139 F.4th 475 (5th Cir. 2025), United States v. Goody, 143 F.4th 617 (5th Cir. 2025) (per curiam), and United States v. Kimble, 142 F.4th 308 (5th Cir. 2025)—the court held that all of Bonner’s claims are “foreclosed in this circuit.”

Judge Willett, joined by Judge Duncan, wrote separately. While fully agreeing that circuit precedent required affirmance, the concurrence delivers a careful critique of two doctrinal strands: (1) the Commerce Clause foundation of § 922(g)(1) as that statute has been interpreted and applied, particularly in light of Scarborough v. United States, 431 U.S. 563 (1977), and (2) the Fifth Circuit’s methodology in applying the Supreme Court’s history-and-tradition test from New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), as elaborated in United States v. Rahimi, 602 U.S. 680 (2024).

Summary of the Opinion

The panel’s disposition is short and categorical:

Facial Second Amendment and Commerce Clause attacks on § 922(g)(1) are foreclosed by Diaz (cert. denied, 145 S. Ct. 2822 (2025)).
An unpreserved vagueness challenge is foreclosed by Branson.
An Equal Protection challenge is foreclosed by Goody.
An as-applied Second Amendment challenge by a felon with a prior drug trafficking conviction is foreclosed by Kimble, which held that “disarming drug traffickers accords with the nation’s history and tradition of firearm regulation.”

The court thus affirmed Bonner’s conviction and sentence. In a footnote, it noted that Bonner’s separate suppression issue was barred by his plea agreement’s waiver.

The Willett concurrence emphasizes that while precedent dictates the result, it may be time for the full court or the Supreme Court to reexamine (a) how § 922(g)(1) satisfies the Constitution’s enumerated-powers scheme and (b) how courts implement Bruen and Rahimi—particularly the use of non-firearm-specific historical laws and extra-record facts to uphold § 922(g)(1).

Analysis

Precedents Cited and Their Role

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025): Diaz rejected a facial Second Amendment challenge to § 922(g)(1) and rejected a Commerce Clause challenge. Bonner conceded these issues are foreclosed by Diaz and raised them only to preserve them for further review. Bonner’s per curiam opinion leans primarily on Diaz to dispatch those two global attacks.
United States v. Kimble, 142 F.4th 308 (5th Cir. 2025): Kimble rejected an as-applied Second Amendment challenge by a defendant with a prior drug trafficking felony, reasoning that disarming drug traffickers is consistent with the Nation’s historical tradition. Bonner’s criminal history includes drug trafficking, so Kimble’s categorical reasoning squarely covers his as-applied claim.
United States v. Branson, 139 F.4th 475 (5th Cir. 2025): Branson foreclosed unpreserved vagueness challenges to § 922(g)(1). The Bonner panel cites Branson to dispose of Bonner’s vagueness argument.
United States v. Goody, 143 F.4th 617 (5th Cir. 2025) (per curiam): Goody rejected an Equal Protection attack on § 922(g)(1). The Bonner panel invokes Goody to foreclose Equal Protection.
Scarborough v. United States, 431 U.S. 563 (1977): The concurrence revisits Scarborough’s interpretation of “in or affecting commerce” to require only a “minimal nexus” showing that a firearm crossed state lines at some time. Judge Willett underscores that Scarborough was a statutory interpretation case that did not analyze the Commerce Clause, cautioning against treating it as constitutional imprimatur.
Commerce Clause canon: United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000); NFIB v. Sebelius, 567 U.S. 519 (2012): The concurrence situates § 922(g)(1) within the Lopez/Morrison framework, doubting that bare possession of a firearm by a felon—proven only by the fact that the firearm once traveled in interstate commerce—falls within any of the three recognized categories, particularly the “substantial effects” category given that mere possession is noneconomic.
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Rahimi, 602 U.S. 680 (2024): The concurrence critiques aspects of Fifth Circuit methodology under Bruen/Rahimi. It urges focusing on firearm-specific historical analogues and on the challenged statute’s actual elements and record facts, rather than hypothetical statutes or collateral circumstances not embodied in § 922(g)(1).
Additional authorities discussed in the concurrence include: United States v. Rawls, 85 F.3d 240 (5th Cir. 1996) (per curiam); United States v. Kuban, 94 F.3d 971 (5th Cir. 1996); United States v. Patton, 451 F.3d 615 (10th Cir. 2006); Rehaif v. United States, 588 U.S. 225 (2019) (status-knowledge requirement; no knowledge-of-interstate-nexus requirement); GDF Realty Invs. v. Norton, 326 F.3d 622 (5th Cir. 2003); and intra-circuit commentary such as United States v. Seekins, 52 F.4th 988 (5th Cir. 2022) (Ho, J., dissenting from denial of rehearing en banc).

Legal Reasoning

Per Curiam: Stare Decisis and Foreclosure

The panel’s reasoning is straightforward: this is not an open field. The Fifth Circuit has recently addressed and rejected each type of challenge Bonner brings. Within this hierarchical system, a panel is bound by prior panel decisions unless and until an en banc court or the Supreme Court says otherwise. Thus:

Diaz controls the facial Second Amendment and Commerce Clause arguments;
Branson controls vagueness (especially unpreserved);
Goody controls Equal Protection; and
Kimble controls the as-applied Second Amendment claim for felons whose predicates include drug trafficking.

On that basis, the panel affirms. The opinion also notes Bonner’s suppression challenge is barred by a plea agreement waiver—a routine application of appellate waiver doctrine.

Concurrence: Two Methodological Fault Lines

Judge Willett concurs in full but highlights “two ways in which our jurisprudence may have strayed from first principles.”

1) Enumerated Powers and the Commerce Clause

The concurrence starts from the premise that federal criminal law must rest on a constitutional grant of power and must respect individual rights. Section 922(g)(1), as currently interpreted, raises enumerated-powers concerns:

Scarborough’s minimal nexus. The Supreme Court read “in or affecting commerce” to require only that the firearm once traveled in interstate commerce. Fifth Circuit decisions apply that reading by proving manufacture in one state and possession in another. The concurrence stresses that Scarborough decided statutory meaning, not constitutional sufficiency.
Lopez/Morrison categories. Mere possession by a felon does not squarely fit within regulating channels, instrumentalities, or persons/things in commerce; it is at most justified (if at all) as an activity that substantially affects interstate commerce. But possession is noneconomic, and aggregation of noneconomic activity is suspect under Morrison. As Judge Willett quotes, “It is hard to imagine a more local crime than this.”
Beware “implication upon implication.” The concurrence cautions against allowing constitutional authority to rest on remote implications from precedents that themselves did not address the constitutional question (citing the Supreme Court’s warning that questions which “lurk in the record” are not precedents).

The upshot: while panel precedent compels the outcome, the full court or the Supreme Court should reexamine whether § 922(g)(1), as applied via the Scarborough minimal nexus, truly rests on a valid exercise of the commerce power.

2) Second Amendment Methodology Under Bruen and Rahimi

The concurrence next examines the Fifth Circuit’s approach to the Bruen/Rahimi history-and-tradition test:

Use firearm-specific historical analogues. Bruen and Rahimi examined actual firearm regulations, not general criminal laws. The concurrence questions prior Fifth Circuit reliance on capital punishment for felonies and generalized surety laws as analogues supporting disarmament, noting Rahimi emphasized that relevant surety laws “targeted the misuse of firearms.”
Focus on the statute and the defendant’s status at the time of possession. Section 922(g)(1) criminalizes possession by someone previously convicted of a crime punishable by more than a year. The concurrence warns against upholding prosecutions based on extraneous facts—for example, later-occurring convictions or the defendant’s intoxication at the time—because Congress has not enacted a “while intoxicated” possession ban, and such facts are neither elements nor necessarily proved to a jury beyond a reasonable doubt in a § 922(g)(1) case.

The concurrence concludes by noting that two Second Amendment cases are pending at the Supreme Court, one from the Fifth Circuit, which may clarify how courts should treat non-firearm laws as historical analogues and delineate the permissible scope of looking beyond the challenged regulation’s elements.

Impact

Immediate, Practical Effects in the Fifth Circuit

Bonner effectively consolidates and reiterates what recent Fifth Circuit cases already established: within this circuit, standard constitutional attacks on § 922(g)(1)—facial and as-applied Second Amendment claims (at least where the predicate is drug trafficking), Commerce Clause, vagueness (unpreserved), and Equal Protection—are foreclosed by binding precedent.
District courts now have a single, succinct panel opinion confirming the current foreclosure landscape, streamlining adjudication of motions to dismiss or suppress premised on these theories.
Defense counsel should preserve issues for higher review but should not expect relief in the Fifth Circuit on these grounds, particularly where the predicate felony involves drug trafficking—Kimble controls those as-applied claims.

Doctrinal Currents to Watch

Commerce Clause viability of § 922(g)(1). The concurrence’s federalism critique may fuel petitions for rehearing en banc or certiorari, inviting reconsideration of whether a “minimal nexus” is constitutionally sufficient after Lopez and Morrison.
Bruen/Rahimi methodology refinements. The concurrence could influence future panels to:
- prioritize firearm-specific historical analogues (rather than generalized criminal sanctions) when assessing historical tradition; and
- limit reliance to the statute’s elements and the defendant’s qualifying status at the time of possession, avoiding “what-if” statutory scenarios.
Pending Supreme Court guidance. The concurrence flags two grants of certiorari that may refine or recalibrate lower courts’ implementation of Bruen—especially regarding analogical reasoning and evidentiary limits in as-applied challenges.

Complex Concepts Simplified

Section 922(g)(1): This federal law makes it unlawful for anyone convicted of a crime punishable by more than one year (i.e., a felony) to possess a firearm or ammunition “in or affecting commerce.” Courts have long read this to cover a gun that, at any time, crossed a state line.
Facial vs. as-applied challenges: A facial challenge attacks a statute in all (or almost all) applications. An as-applied challenge concedes the statute may be valid in some situations but argues it is unconstitutional as applied to this particular defendant and set of facts.
Commerce Clause categories (Lopez): Congress may regulate (1) channels of interstate commerce, (2) instrumentalities of interstate commerce or persons/things in commerce, and (3) activities that substantially affect interstate commerce. Possession of a gun by a felon is a noneconomic activity that is difficult to fit into these categories without relying on broad aggregation.
Scarborough’s “minimal nexus” (statutory): The Supreme Court held that, as a matter of statutory interpretation, the government need only prove a firearm moved in interstate commerce at some time. Scarborough did not decide whether this minimal nexus suffices constitutionally under the Commerce Clause.
Bruen/Rahimi historical-tradition test: The government must show that modern gun regulations are consistent with the Nation’s historical tradition of firearm regulation. Analogues should be “relevantly similar” in how and why they burden the right to keep and bear arms, with emphasis on firearm-specific regulations.
Equal Protection (basic frame): Because felons are not a suspect or quasi-suspect class, Equal Protection challenges typically receive rational-basis review unless another fundamental right triggers heightened scrutiny. Goody rejected such an Equal Protection attack on § 922(g)(1).
Vagueness: A penal statute is unconstitutionally vague if it fails to provide ordinary people fair notice of the conduct it punishes or is so standardless that it invites arbitrary enforcement. Branson rejected an unpreserved vagueness challenge to § 922(g)(1).
Rehaif knowledge-of-status: The government must prove a defendant knew he belonged to the category prohibited from possessing a firearm (e.g., knew he was a felon), but it need not prove the defendant knew the gun crossed state lines.

Conclusion

United States v. Bonner does not announce new doctrine, but it is important for what it clarifies and consolidates. In a brief per curiam, the Fifth Circuit confirms that a suite of constitutional challenges to § 922(g)(1) is foreclosed by a recent run of circuit authority: Diaz (facial Second Amendment and Commerce Clause), Branson (vagueness), Goody (Equal Protection), and Kimble (as-applied challenge by a drug-trafficking felon). For practitioners, Bonner is now the succinct citation collecting those holdings and signaling that, absent intervening higher-court guidance, these avenues are blocked in the Fifth Circuit.

The concurrence is equally consequential. It invites careful reconsideration of two foundational premises: whether the current “minimal nexus” approach to § 922(g)(1) comports with the Constitution’s limits on federal power, and whether Fifth Circuit applications of Bruen and Rahimi should more rigorously confine themselves to firearm-specific historical analogues and to the statute’s actual elements and record facts. With Supreme Court cases pending that may refine Bruen’s methodology, Bonner marks both an end point and a waypoint: it ends Bonner’s appeal under current circuit law while mapping the fault lines along which future en banc or Supreme Court decisions may reshape the constitutional law of felon disarmament.