Citation

Barrett AC. Boston Univ. Law Rev. 2013; 93(1): 163-199.

Copyright

(Copyright © 2013, Boston University Law School)

DOI

unavailable

PMID

unavailable

Abstract

The Supreme Court's 2008 decision in District of Columbia v. Heller announced, for the first time, that the Second Amendment to the U.S. Constitution secures an individual right to keep and bear arms. The ever-divisive gun control debates will now be shaped by Heller and the lower court rulings that have followed in its wake. One of the most well-known ways in which governments regulate firearm possession is by prohibiting gun ownership by felons. At the federal level, 18 U.S.C. 922(g) (1) makes it a felony for any person already convicted of a felony under state or federal law to possess a firearm. While this is an undoubtedly laudable goal, 922(g) (1) prohibits gun possession by practically all nonviolent felons in addition to those that pose a serious risk of future danger. In light of Heller's recognition of an individual right to bear arms for self-defense, the sheer breadth of the law may pose constitutional problems. In short, nonviolent felons appear to have at least plausible claims that the law may be overbroad. Following the announcement of the Court's decision in Heller, large numbers of violent or otherwise unsympathetic felons convicted under 922(g) (1) sought to challenge their convictions on the ground that the law violated their Second Amendment rights. Some lower courts addressing these challenges have issued narrow holdings, dismissing the challenges at hand but recognizing that a nonviolent offender may fare better in an as-applied challenge. Others have taken the stance that all felons can constitutionally be barred from possessing firearms. This Note examines the litigation taking place in the lower federal courts. It chronicles the efforts of the courts to articulate a standard for evaluating Second Amendment claims. The Note then explains why challenges to 922(g) (1) brought by nonviolent offenders deserve more attention than some courts allow under the categorical approach they have adopted. Finally, the Note scrutinizes the Heller opinion and historical and means-ends justifications for barring firearm possession by nonviolent felons. In this regard, the Note concludes that complete foreclosure of the possibility of a successful as-applied challenge is not dictated by Heller and that the justifications currently relied on to support the law are far weaker when the law is applied to nonviolent felons. This Note recommends that courts follow the example of the Third, Fourth, and Seventh Circuits by leaving consideration of the law's applicability to nonviolent felons to an appropriate. case and putting the government to its task of proving the law's constitutionality.

Language: en