Commerce Clause – Active versus Inactive
After the New Deal, it seemed as if the limits on federal power had been discarded and nearly any federal law could be upheld as an exercise of authority under the Commerce Clause or the Equal Protection Clause of the Fourteenth Amendment. See Wickard v. Filburn, 317 U.S. 111 (1942) (setting the precedent for an expansive reading of the Commerce Clause, and dramatically increasing the regulatory authority of the federal government). This began to change in the mid-1990s with three Supreme Court decisions: United States v. Lopez, 514 U.S. 549 (1995), City of Boerne v. Flores, 521 U.S. 507 (1997), and United States v. Morrison, 529 U.S. 598 (2000). Collectively, these cases signaled the Court’s intent to more narrowly construe congressional powers. More recently, the Court addressed the Commerce Clause in NFIB v. Sebelius, 567 U.S. 519 (2012) regarding the individual mandate in the Affordable Care Act. Focusing on Lopez’s requirement that Congress regulate only commercial activity rather than inactivity, the Court held that the individual mandate could not be enacted under the Commerce Clause, NFIB v. Sebelius, 567 at 558.
In other words, per Lopez the mere possession of a firearm is not a commercial activity, but an inactivity.
Now what does 18 U.S.C. § 922(g)(5) say?
(g) It shall be unlawful for any person—
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (Y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The first offence of being found guilty for being an alien illegally and unlawfully in the United States is a misdemeanor, not a felony, effectively making 18 U.S.C. § 922(g)(5) unconstitutional.