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Abstract
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In 2023, over the course of one week, two U.S. courts of appeals ruled on Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting firearm possession for those convicted of felonies. Both courts applied the U.S. Supreme Court's "history and tradition" test from New York State Rifle & Pistol Ass'n v. Bruen. In the U.S. Court of Appeals for the Eighth Circuit, criminal defendant Edell Jackson did not succeed. There, the court found that the nation's history and tradition supported the validity of a law banning firearm possession by felons, regardless of the details of their felony or propensity for violence. In the U.S. Court of Appeals for the Third Circuit, Bryan Range, who was convicted of welfare fraud in 1995, brought a civil suit seeking injunctive relief so that he could again lawfully possess firearms. The Third Circuit ruled for Range and held that the nation's history and tradition did not support disarming someone like Range. The circuit thus held that Range's entire disarmament under § 922(g)(1), including at the time of his 1995 conviction, was unconstitutional.
This Note proposes that the U.S. Supreme Court resolve this split on § 922(g)(1) by ruling that history and tradition support § 922(g)(1)'s categorical disarmament of felons. In particular, this Note argues that the Eighth Circuit more accurately applied step two of Bruen, which asks whether a challenged firearm law is sufficiently analogous to, and thus supported by, firearm laws from earlier periods in American history. This is particularly noteworthy as both courts considered and decided their cases with the same historical examples of disarmament in mind. Next, this Note argues that § 922(g)(1)'s validity under Bruen supports closing off Second Amendment challenges to § 922(g)(1) in criminal proceedings, but that courts can permit such challenges to seek prospective, declaratory relief in civil proceedings. This Note concludes by arguing that structuring the relief in this way appropriately permits rearmament only for those who can demonstrate their law-abiding, responsible status.
CONCLUSION The Supreme Court should hold that § 922(g)(1) is rooted in history and tradition, and it should clarify that Congress's power to disarm the non-law-abiding extends to those with prior felony convictions. Upholding § 922(g)(1) not only follows the spirit of Heller and McDonald, but it also fits squarely within the Court's Second Amendment jurisprudence in Bruen. Bruen positioned history and tradition as the lodestar for determining the constitutionality of firearms laws. Accordingly, this Note illustrates how § 922(g)(1)'s constitutionality is affirmed by founding-era history, wherein legislatures repeatedly disarmed whole groups based on no more than a determination that such a group posed an unreasonable risk of danger if armed. Although the Court could allow for relief in the form of prospective civil declaratory relief, it need not under Bruen. And if the Court does entertain prospective petitions for relief from § 922(g)(1), under Bruen, disarmed individuals must bear the burden of rebutting the validity of § 922(g)(1) going forward.
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss5/15
Language: en |