The "Other" Dangerous People: The Second Amendment's Dangerousness Dilemma

Abstract

Abstract for a work in progress titled "The "Other" Dangerous People: The Second Amendment's Dangerousness Dilemma". Guns are an integral part of the American story. Independence was won from the British and freedom guaranteed by the superior firearm skills and gunsmithing of the colonial patriots. The western frontier was conquered and national expansion achieved largely due to the sheer quantity and accessibility of firearms. And the Allied victories during the World Wars of last century were, for the most part, due to the weapons dominance of the United States. For better or for worse, history has tightly woven guns into the national identity. Though enshrined in the Second Amendment and recently proclaimed to be an individual fundamental right, deciding who is permitted to exercise the right to bear arms is constitutionally uncertain. The directive that “the people” retain the freedom to possess firearms is clashing with the American history and tradition test announced in 2022 by the United States Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. Challenges to categorical group exclusions enumerated in 18 U.S.C. § 922(g) are producing federal court opinions that are inconsistent intra district and also circuit splits. One of the most problematic group exclusions is § 922 (g)(1), the federal felon firearm prohibition. Today, as in the past, not all Americans are permitted to exercise the right to bear arms. Felons are one such group. Though the Second Amendment does not provide an absolute right, there is no textual mooring to support an exclusion. Nor is there a legal mechanism in place to restore the firearm privileges of federal felons, effectively making a § 922 (g)(1) violation a lifetime ban. The task of evaluating felon disarmament is not an easy one. It involves a delicate balancing of the public safety with the freedom to defend oneself from violent attack along with the societal interest in the fair administration of the law. And the doctrinal analysis requires a consideration of the history and tradition of categorical disarmament. Other than noting that felon firearm prohibitions are presumptively lawful, the Court has offered no further guidance to examine the issue. Now, the federal courts confronting § 922 (g)(1) challenges are producing badly fragmented opinions with divisions among the circuits. This Article contends that categorical felon disarmament is unconstitutional. The argument is twofold. First, based on the analytical “history and tradition” test announced in Bruen, § 922 (g)(1) does not survive constitutional scrutiny. There is scant evidence, if any, that convicts were disarmed during the colonial and Founding eras. During that period, however, convict transport from England and Ireland was the primary method of punishment by the Crown. It was a fact that the Framers were very much aware of yet did not require disarmament of this group. Though there were several types of gun control available at the Founding, such as surety and affray laws, none permanently deprived convicts of the right to bear arms as does § 922 (g)(1). Secondly, the categorical dangerousness principle is not a constitutionally appropriate basis to justify the statute. This approach was hinted at in United States v. Rahimi and employed by the majority of federal circuit courts upholding the constitutionality of § 922 (g)(1). Historically “dangerousness” was invoked to disarm segments of the American population. The government dispossessed groups with the potential of sedition and rebellion along with racial minorities, which is today an unconstitutional basis. Categorically disarming an entire segment of the population without individual dangerousness determinations is likely unconstitutional and outside of the parameters of the Bruen test. Not only are relevantly similar historical analogues lacking, but there is also little proof convicts were legislatively labeled “dangerous” though Native Americans and Blacks were in fact branded as such. Several federal courts are summarily dismissing this past racial dispossession as irrelevant, and even more are seeing it as a justification to uphold the constitutionality of § 922 (g)(1). The nation’s history of disarming nonwhites serves as a powerful reminder of how tyranny operates and the reason that the Second Amendment was ratified.