There is a good argument that felon in possession of a firearm prosecutions for violating 18 U.S.C. § 922(g)(1) by the federal government are unconstitutional and violate the Second Amendment. This argument comes from the Supreme Court's monumental Second Amendment decision last year in New York State Rifle & Pistol Ass'n v. Bruen, and the "originalist" theory of the Constitution that has become the currency of the Supreme Court's Republican-appointed majority.
Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so the questions then become what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms?
The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:
James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state."
A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."
Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”
So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional.
So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals.
This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed.
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