Citation

Campbell K. Miss. Law Rev. 2024; 88(4): 1167-1210.

Copyright

(Copyright © 2024, School of Law, University of Missouri-Columbia)

DOI

unavailable

PMID

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Abstract

Felons are not allowed to possess firearms--yet. New York State Rifle and Pistol Association v. Bruen is the Supreme Court's most recent elaboration on the Second Amendment, and the Court enunciated a new constitutional test for firearms regulations.1 The Supreme Court disclaimed the means-end balancing approach developed by courts in the wake of D.C. v. Heller and replaced it with a test focusing only on the plain text of the Second Amendment and the Nation's historical tradition of firearms regulation.2 18 U.S.C. § 922(g)(1), the federal felon dispossession statute, fared well under means-end balancing in the decade after Heller.3 Although the statute is facing a new onslaught of challenges post-Bruen, § 922(g)(1) remains unscathed. Since Bruen, not a single challenge to § 922(g)(1) has succeeded--including as-applied challenges brought by non-violent felons. This Comment contends that a faithful application of Bruen should not necessarily yield this result, and that the historical record supporting § 922(g)(1)'s constitutionality as applied to non-violent felons is not as straightforward as its winning record suggests. Particularly, this Comment argues that courts must at least conduct a historical inquiry, as mandated by Bruen, when facing challenges to § 922(g)(1), and courts cannot cut their analysis short by relying solely on dicta from Heller.

[1 N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022). 2 District of Columbia v. Heller, 554 U.S. 570 (2008). 3 18 U.S.C. § 922(g)(1) (2022)]

Part II of this Comment provides a brief description of § 922(g)(1) and the role that it plays in the United States. Part III summarizes the facts and holding of Bruen. Part IV explains the legal background leading up to Bruen, beginning with Heller. This Part also discusses pre-Bruen challenges to § 922(g)(1) and the reasoning courts used to dismiss these challenges, particularly as-applied challenges brought by non-violent felons. Part IV concludes by providing the historical record that was used in Bruen. Part V details Bruen's holding, illustrates the manner in which the Bruen test is conducted, and explains how Bruen treats historical analogues. Finally, Part VI discusses post-Bruen challenges to § 922(g)(1) and concludes by explaining the reasoning of the courts that have faced and rejected as-applied challenges to § 922(g)(1), along with the weaknesses in the courts' arguments.

Language: en