UNITED STATES OF AMERICA v. ARNETT JACKSON BONNER
No. 24-60601
United States Court of Appeals, Fifth Circuit
November 13, 2025
United States Court of Appeals
for the Fifth Circuit
____________
No. 24-60601
____________
United States of America,
Plaintiff—Appellee,
versus
Arnett Jackson Bonner,
Defendant—Appellant.
______________________________
for the Southern District of Mississippi
USDC No. 1:23-CR-144-1
______________________________
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:
Arnett Jackson Bonner pleaded guilty to possessing a firearm after a
felony conviction in violation of
convictions include drug trafficking and being a felon in possession of a
firearm. On appeal, he argues
under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022),
both facially and as applied to him. Bonner also argues
unconstitutionally vague, exceeds Congress’s power under the Commerce
Clause, and violates the Equal Protection Clause.1
motion to suppress. But Bonner correctly concedes in his reply brief that the issue is barred
by his plea agreement’s waiver provision.
Commerce Clause challenges. See United States v. Diaz, 116 F.4th 458, 462,
471–72 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025). He raises these
claims only to preserve them for further review. The Government contends
all of Bonner’s challenges are foreclosed, citing Diaz and several other recent
decisions by our court.
We agree with the Government: All Bonner’s challenges are now
foreclosed in this circuit. See, e.g., id. at 471–72 (rejecting
Second Amendment and Commerce Clause challenges); United States v.
Branson, 139 F.4th 475, 477–79 (5th Cir. 2025) (rejecting
unpreserved vagueness challenge); United States v. Goody, 143 F.4th 617, 619
(5th Cir. 2025) (per curiam) (rejecting
challenge); United States v. Kimble, 142 F.4th 308, 309, 315–17 (5th Cir. 2025)
(rejecting as-applied Second Amendment challenge to
appellant with prior felony drug trafficking conviction because “disarming
drug traffickers accords with the nation’s history and tradition of firearm
regulation”).
AFFIRMED.
UNITED STATES OF AMERICA v. ARNETT JACKSON BONNER
No. 24-60601
United States Court of Appeals, Fifth Circuit
November 13, 2025
Don R. Willett, Circuit Judge, joined by Stuart Kyle Duncan,
Circuit Judge, concurring:
Like every congressional enactment, a federal criminal statute must
satisfy two constitutional demands. First, it must rest on one of Congress’s
“few and defined” powers.1 And second, it must respect the many
constitutional provisions that secure individual rights against government
intrusion. I am not certain that the statute under which Arnett Jackson
Bonner was sentenced—
(at least as federal courts have interpreted it). If it does not, then the “offence
created by it is not a crime,” and “[a] conviction under it is not merely
erroneous, but is illegal and void, and cannot be a legal cause of
imprisonment.”2
Even so, while I harbor doubts that
no doubt about what our precedent requires. For that reason, I join the
majority opinion, which faithfully applies controlling authority to reject each
of Bonner’s challenges. I write separately to highlight two ways in which our
jurisprudence may have strayed from first principles.
I
“Every law enacted by Congress must be based on one or more of its
powers enumerated in the Constitution.”3 And although those powers “are
sizable, . . . they are not unlimited.”4 That means, among other things,
Congress has no power to enact a comprehensive criminal code. As Chief
1961).
Justice Marshall—no skeptic of national power5
—explained, “It is clear, that
Congress cannot punish felonies generally.”6
want to criminalize can be criminalized by the federal government. For
example, “Congress has a right to punish murder in a fort, or other place
within its exclusive jurisdiction,” but it has “no general right to punish
murder committed within any of the States.”7
As relevant here,
person . . . who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to . . . possess in or affecting
commerce, any firearm or ammunition.”8 On its face, the phrase “in or
affecting commerce” might appear to require a genuine commercial nexus—
placing
Commerce . . . among the several States,”9 or perhaps within its authority
“[t]o make all Laws which shall be necessary and proper for carrying into
Execution” that power.10 But in Scarborough v. United States, the Supreme
Court interpreted
affecting commerce” to demand no more than “the minimal nexus that the
17 U.S. (4 Wheat.) 316 (1819).
(Thomas, J., dissenting) (“Beyond the four express grants of federal criminal
authority . . . Congress may validly enact criminal laws only to the extent that doing so is
‘necessary and proper for carrying into Execution’ its enumerated powers or other powers
that the Constitution vests in the Federal Government.” (citation omitted)).
firearm have been, at some time, in interstate commerce.”11 Applying that
interpretation to
only that a firearm was manufactured in one State and later discovered in
another.12 The Supreme Court has gone further still, suggesting that a
defendant need not even know the firearm ever crossed state lines.13
So construed, it is difficult to see how
of enumerated powers. In United States v. Lopez, the Supreme Court
“identified three broad categories of activity that Congress may regulate
under its commerce power.”14 “First, Congress may regulate the use of the
channels of interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the threat may come from
intrastate activities. Finally, Congress’ commerce authority includes the
power to regulate those activities having a substantial relation to interstate
commerce, i.e., those activities that substantially affect interstate
commerce.”15
Mere possession of a firearm fits uneasily within any of these
categories.16 The closest candidate might be “activities that substantially
affect interstate commerce”—after all, some have argued that “widespread,
similar ban on possessing body armor under
firearm-related crime” has a substantial effect on the national economy.17 But
whatever the effect of such “widespread” crime, the economic
consequences of Bonner’s individual act of possession is hardly
“substantial.” At best,
by aggregating the impact of all firearm possession by felons. Yet aggregation
is ordinarily appropriate only when the underlying activity is economic—and
firearm possession is not.18 As the Supreme Court explained in United States
v. Morrison, “[t]he Constitution requires a distinction between what is truly
national and what is truly local.”19 And it is, indeed, “hard to imagine a more
local crime than this.”20
While we have acknowledged the force of this objection, we have
“regard[ed] Scarborough . . . as barring the way.”21 But it was not
Scarborough’s holding that led us to that conclusion; as we have noted,
“Scarborough addresses only questions of statutory construction, and does
not expressly purport to resolve any constitutional issue.”22 Instead, we have
relied on what we took to be Scarborough’s “implication of
grounds, 404 U.S. 1009 (1972); see also Lopez, 514 U.S. at 563–66 (recounting—but
ultimately rejecting—similar arguments from the dissent and the Government).
question for purposes of aggregation is whether the nature of the regulated activity is
economic.”); Lopez, 514 U.S. at 567 (“The possession of a gun in a local school zone is in
no sense an economic activity that might, through repetition elsewhere, substantially affect
any sort of interstate commerce.”).
from denial of rehearing en banc).
Wiener, J., and Garza, J.).
constitutionality.”23 Yet a decision like Scarborough—in which the
Commerce Clause “was not at issue, and was not so much as mentioned in
the opinion”—is “scant authority” on the meaning of that Clause.24 In
concluding otherwise, we have strayed from the Supreme Court’s considered
interpretations of the Commerce Clause in Lopez, Morrison, and NFIB v.
Sebelius,25 and from its admonition that “[q]uestions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon, are not
to be considered as having been so decided as to constitute precedents.”26
The pseudonymous Anti-Federalist Brutus objected to Congress’s
powers under the new Constitution, fearing that “implication” would
“extend” them “to almost every thing.”27 He also warned that the Judiciary
would become an instrument for enlarging federal authority, predicting that
we would “extend the limits of the general government gradually” through
“a series
state governments.”28 Our reliance on Scarborough combines these fears: our
decisions now expand federal power not by remote implication from the
constitutional text, but by remote implication from our own precedents.
While Brutus’s fears of the total abolition of the States may have been
overstated, the steady expansion of federal power has nonetheless deprived
v. Fall, 266 U.S. 507, 511 (1925)).
Anti-Federalist 422, 425 (Herbert J. Storing ed., 1981).
Anti-Federalist, supra, at 441.
the States of much of their freedom to pursue innovative, locally tailored
solutions to vexing problems. Most debates over felon disarmament focus on
the Second Amendment (which I address below). But there is also a serious
question about whether some individuals who may constitutionally be
disarmed should nevertheless have their rights restored.29 In the system the
Framers designed, the States could—within constitutional bounds—serve
“as laboratories for devising solutions” to that “difficult legal problem[].”30
By contrast, in the world
experimentation is foreclosed by the long arm of the general government—
much like the world Brutus feared.
* * *
As one of our colleagues has observed, “our circuit precedent
dramatically expands the reach of the federal government under the
Commerce Clause. No Supreme Court precedent requires it. And no proper
reading of the Commerce Clause permits it.”31 That alone is reason enough
for the full court—or, if need be, the Supreme Court—to take up the question
and reexamine our precedent.
II
Of course, even Congress’s limited powers are further constrained by
the rights secured in the Bill of Rights, including the Second Amendment’s
guarantee that “the right of the people to keep and bear Arms, shall not be
banc) (“Americans disagree passionately over a wide range of issues—including a variety
of criminal justice issues, such as whether felons should be punished for possessing
firearms.” (citations omitted)).
285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).
infringed.”32 In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme
Court instructed courts to ask whether firearm regulations like
are “consistent with this Nation’s historical tradition of firearm
regulation.”33 Numerous panels of this court have undertaken that inquiry
with commendable diligence and care. But I am not sure we have always
approached it with the methodological precision that Bruen demands.
A
First, Bruen and its follow-on case, United States v. Rahimi, make clear
that the relevant tradition is “this Nation’s historical tradition of firearm
regulation.”34
laws that were, in no meaningful sense, “firearm regulations.” For example,
when we first grappled with Bruen’s application to
States v. Diaz, we analogized to statutes authorizing capital punishment for
felonies.35 But capital punishment is a “firearm regulation” only in the
loosest sense.
That is not how the Supreme Court conducts its own
history-and-tradition analyses. Every historical analogue the Court
considered in Bruen and Rahimi was, in fact, a regulation specifically
governing firearms.36 True, in Diaz we observed Rahimi’s reference to surety
Bruen, we directed courts to examine our ‘historical tradition of firearm regulation’ to help
delineate the contours of the right.” (emphasis added) (quoting Bruen, 597 U.S. at 17)); id.
at 708 (Gorsuch, J., concurring) (asking “whether th[e] law . . . is consistent with
historic firearm regulations” (emphasis added)).
laws, which we noted “were not explicitly related to guns, yet sometimes
applied to limit their possession.”37 But we did not confront why the Rahimi
Court found it “[i]mportant[]” that many surety laws “targeted the misuse
of firearms.”38 Diaz also sought to distinguish Bruen’s exclusive reliance on
“explicit firearm regulation[s],” reasoning that “Bruen was addressing the
constitutionality of a statute that . . . appli[ed] to everyone equally,” whereas
group, and yet the Rahimi Court still found it significant that the historical
analogues on which it relied “targeted the misuse of firearms.”40
Even if laws not specifically directed at firearms are part of “this
Nation’s historical tradition of firearm regulation,”41 it is not clear that
regulations imposing only incidental burdens on the right to bear arms are
“relevantly similar” to direct prohibitions on Second Amendment-protected
conduct.42 When comparing a modern regulation to a historical analogue,
“how the regulation burdens the right” is “central” to our inquiry.43 And a
direct prohibition burdens the right in a fundamentally different manner from
a regulation that imposes only an incidental one. We acknowledge that
‘relevantly similar’ to laws that our tradition is understood to permit . . . .” (quoting Bruen,
597 U.S. at 29)).
distinction in other contexts;44 it is not clear why we should treat it as
irrelevant here.
B
Second, Bruen and Rahimi instruct us to “consider[] whether the
challenged regulation is consistent with the principles
regulatory tradition.”45 In a
of course,
applied to a particular defendant, comports with the Second Amendment—
not whether some hypothetical statute could constitutionally apply to the
defendant. For the most part, our cases have recognized this principle and
have thus limited their analysis to the facts that trigger
firearm possession—namely, “prior convictions that are ‘punishable by
imprisonment for a term exceeding one year.’”46
At times, however, we have slipped into a hypothetical “what-if”
statute analysis, treating
altogether. In one case, for example, we relied in part on felonies for which
the defendant was convicted after the charged possession47—even though
First Amendment does not prevent restrictions directed at commerce or conduct from
imposing incidental burdens on speech”).
government must demonstrate that the regulation is consistent with this Nation’s historical
tradition of firearm regulation.” (emphasis added)).
v. Kimble, 142 F.4th 308, 318 (5th Cir. 2025); United States v. Morgan, 147 F.4th 522, 528
(5th Cir. 2025); United States v. Betancourt, 139 F.4th 480, 483 (5th Cir. 2025).
charged possession.”48 In another, we relied on the fact that the defendant
was intoxicated when he possessed a firearm.49 We reasoned, in essence, that
Congress might have passed a law barring firearm possession by those who
are intoxicated, and thus
intoxicated.50 But Congress has not enacted such a law. And if it had, the
defendant could have insisted that the Government prove his intoxication to
a jury beyond a reasonable doubt—with all the procedural protections the
Constitution affords—rather than to a judge under a preponderance standard
and with minimal procedural safeguards.
When it adopted
relevant to a
particular
heavily on extraneous facts—particularly when those facts have not passed
through the adversarial gauntlet required for other facts necessary to the
imposition of criminal punishment.
* * *
No doubt, applying the Second Amendment to
challenging task. I do not pretend to have all the answers. But in these two
respects, I harbor serious reservations that our analysis has been consistent
with Bruen and Rahimi.
927 F.3d 868, 874 (5th Cir. 2019) (noting that the predicate conviction must occur “before
the defendant possessed th[e] firearm”).
Two Second Amendment cases are currently pending before the
Supreme Court—one originating in our own circuit.51 Perhaps those
decisions will clarify
historical analogues under Bruen, and define more precisely the limits of
judicial authority to look beyond the challenged regulation itself. But if not—
and perhaps even if so—our full court should, at the right opportunity, take
a fresh and unflinching look at our Second Amendment methodology.
2025) (per curiam), cert. granted, No. 24-1234, 2025 WL 2949569 (U.S. Oct. 20, 2025);
Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), cert. granted, No. 24-1046, 2025 WL
2808808 (U.S. Oct. 3, 2025).