The author currently works as an Attorney specialising in constitutional and criminal matters, a former Assistant Solicitor-General in Tennessee, and lecturer of consitutional theory.
Firearms have been integral to Americans since the founding of the United States (U.S. Const. Amend. II.). And recently Americans have grappled with the proper regulations for the possession of firearms, reviving a topic of fiery debate. A change to precedent began in 2008 with District of Columbia v. Heller (554 U.S. 570 (2008)), which stated that the Second Amendment codified a pre-existing individualized right, much like the First Amendment. Thus, affording greater protection for those wishing to possess firearms. Second Amendment jurisprudence’s watershed moment began with New York State Rifle & Pistol Association v. Bruen (597 U.S. 1 (2022)). Bruen established a test for determining when the government could regulate possession of firearms. When the Second Amendment’s plain text protects certain conduct (the right to possess a firearm), the government may regulate it if it can “prove that its firearms regulation is part of the historical tradition. . . of the right to keep and bear arms.” (597 U.S. 1 (2022)). So, if the government wanted to ban all quarterbacks from having guns, it would need to point to some historical precedent for doing so. And that historical precedent better be darn good. It’s not enough to proffer a few examples, and the burden falls on the government to state why those examples are analogous (597 U.S. 1 (2022)).
With such a daunting task to regulate firearms, one would be forgiven for believing that Americans virtually have no limitations on firearms in some States. And until the 20th century, very few regulations on firearms existed at all. The first permanent restriction came in the form of criminalizing firearm possession by those previously convicted of a felony in the 1960s. Since the advent of these gun regulations in the 20th century, coined, “felon in possession” laws, thousands have faced staggering prison sentences for possessing a firearm (USSC, n.d.). Should one find herself convicted of tax fraud, robbery, art forgery, poaching, or a litany of other crimes, she may find herself in trouble should she ever hold or be able to access a gun. Not just for a year or two after her sentence, but for the rest of her life.
Imagine, 19-year-old Lilly steals $1,000 from a supermarket. Lilly pleads guilty, serving a year in prison followed by probation. This serious but youthful blunder has life-long consequences: no more Second Amendment.
Decades later, Lilly has built a life with Thomas. They’re a responsible couple, and Thomas owns a handgun for self-defense, keeping it safely stored in their F150. One afternoon, while out running errands, they’re pulled over for speeding. While Thomas is searching the glove compartment for his registration, the officer sees Thomas’ gun. And, during the routine check, the officer discovers Lilly’s old conviction. Suddenly, Lilly, a law-abiding citizen for decades, finds herself handcuffed, facing federal charges. Her life shatters.
Thousands of individuals across the country carry the weight of past convictions, even for non-violent offenses, forever abrogating their constitutional rights. These laws disproportionately impact citizens on the lowest rung of the socio-economic ladder, perpetuating a cycle of criminalization.
That leads us back to Bruen. Many felt that Bruen’s new test would vindicate those imprisoned for felon in possession of a firearm. That the Second Amendment protected these individuals because, prior to the 20th century, there was no limitation on ex-cons possessing guns. The judicial system’s answer post Bruen has been a mix of great hope, yet also trepidation.
In United States v. Williams, the Sixth Circuit Court of Appeals pioneered a framework for evaluating whether a convicted felon retains their Second Amendment rights. This framework essentially establishes a tiered system to assess the individual’s risk level. Tier 1 includes those convicted of the most serious violent offenses, such as murder. Tier 2 encompasses individuals convicted of less severe crimes, including theft or drug charges. Tier 3 consists of those convicted of non-violent offenses like tax fraud. The court further emphasized the importance of considering the duration since the individual’s last violent offense and the circumstances surrounding their current arrest.
This tiered system represents a significant step forward, provided it’s implemented with due process protections. A rigorous hearing is paramount. The Bail Reform Act serves as valuable precedent, requiring courts to consider a range of factors, including criminal history, the severity of the alleged offense, an individual’s personal background and any potential danger to the community (18 U.S.C. § 3142(f) and § 3142(g)). This comprehensive approach ensures a more nuanced assessment of individual risk, more in line with the Constitution.
With guidance from Williams, the Constitution, and the Bail Reform Act, courts will evaluate an individual’s dangerousness at a Second Amendment hearing on an as applied basis. Weighing factors like dangerousness to the community, dangerousness of the arrest, and an individual’s personal background. Williams’ foresight could prevent countless individuals from facing arduous and tumultuous prosecutions, upholding their inalienable, constitutional rights.
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