Skip to content

Refining the Dangerousness Standard in Felon Disarmament

By Jamie G. McWilliam. Full Text.

To some, 18 U.S.C. 922(g) is a necessary safeguard that keeps guns out of the hands of dangerous persons. To others, it strips classes of non-violent people of their natural and constitutional rights. This statute makes it a crime for certain classes of individuals to transport, receive, or possess firearms or am- munition. These include felons, fugitives, unlawful users of controlled substances, the mentally ill, illegal aliens, veterans with dishonorable discharges, those who renounce their U.S. citizenships, those subject to restraining orders, and convicted perpetrators of domestic violence. Prior to Bruen, the first prong––which applies to felons––was upheld against numerous challenges at the circuit court level. However, the two-step interest balancing test used to uphold this provision was rejected in Bruen and was replaced with a history and tradition test opening the door to renewed challenges. Under this new standard, if conduct falls within the plain text of the Second Amendment, the government must “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Since Bruen was decided, courts have chipped away at 18 U.S.C. 922(g), either rejecting provisions of the law entirely, or narrowing the permissible scope of their application.

A notable provision that largely escaped enjoinment by the courts, however, is 18 U.S.C. 922(g)(1), which disarms any per- son “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” Circuit Courts have come to distinct conclusions about this area, leaving the question open for future courts: under this nation’s tradition, what class of people can be categorically disarmed? This Essay engages with this question.

Part I of this essay briefly discusses the history of disarmament laws in the United States, drawing out the tension between their general theme of dangerousness and their problematic applications. In Part II, this essay traces the Second Amendment back to its first principles to outline the boundaries for whom it does—and does not—protect the right to keep and bear arms. Part III applies these principles to the issue of felon disarmament and proposes an evidence-backed standard that fulfills the Second Amendment’s principle of defense while protecting individual rights against the potentially discriminatory discretion of judges and lawmakers.