Trump's Conviction Requires Him To Surrender His Guns. Civil Libertarians Should Be Troubled.

The former president's loss of his Second Amendment rights highlights an arbitrary restriction that applies to many people with no history of violence.

Last September, Trump campaign spokesman Steven Cheung caused a kerfuffle by mistakenly reporting that the former president had bought a Glock 19 pistol decorated with his portrait during a visit to a gun dealer in Summerville, South Carolina. At the time, Trump faced four criminal indictments, which would have made him guilty of several federal felonies—the purchase itself, plus two more felonies related to falsely presenting himself as an eligible buyer—if he had actually completed the transaction that Cheung described. Now that a New York jury has convicted Trump of 34 felonies involving falsification of business records, he is barred from possessing firearms as well as buying them.

Trump, who had a concealed carry permit, owned at least two handguns prior to his conviction: a Heckler & Koch HK45 pistol and a .38-caliber Smith & Wesson revolver. As the New York Post notes, Trump will now have to surrender those guns and any others he has acquired or transfer them to someone (such as one of his sons) who is legally allowed to own firearms. The fact that Trump, a self-described "very strong person on the Second Amendment," has lost the right to keep and bear arms may add to the delight of opponents who welcomed his conviction. But however you feel about Trump, this detail is a reminder that federal law arbitrarily strips people of their Second Amendment rights for reasons that have nothing to do with public safety.

Leaving aside the shaky legal reasoning that allowed New York prosecutors to convert a hush payment into 34 felonies, falsification of business records, even to aid or conceal "another crime," is not the sort of offense that marks someone as apt to injure or kill people with a gun. 18 USC 922(g)(1), which prohibits receipt or possession of a firearm by anyone who has been convicted of a crime punishable by more than a year of incarceration, is "wildly overinclusive," UCLA law professor Adam Winkler notes, because it encompasses many people with no history of violence.

"Many felonies are not violent in the least, raising no particular suspicion that the convict is a threat to public safety," Winkler writes. "Perjury, securities law violations, embezzlement, obstruction of justice, and a host of other felonies do not indicate a propensity for dangerousness. It is hard to imagine how banning Martha Stewart or Enron's Andrew Fastow from possessing a gun furthers public safety."

The same goes for Trump. Even if you buy the dubious "election fraud" narrative that a New York jury evidently accepted, disguising a hush-money reimbursement as payment for legal services puts Trump in the same boat as white-collar offenders such as Stewart and Fastow. Notwithstanding Trump's joke that he "could stand in the middle of Fifth Avenue and shoot somebody" without losing any votes, that is not the sort of crime that even his most vociferous opponents think he is likely to commit.

History "demonstrates that legislatures have the power to prohibit dangerous people from possessing guns," Supreme Court Justice Amy Coney Barrett wrote in a 2019 dissent as a judge on the U.S. Court of Appeals for the 7th Circuit. "But that power extends only to people who are dangerous." In that case, Barrett concluded that a mail fraud conviction did not justify permanently depriving a defendant of the right to arms.

Three years later, Barrett joined the majority opinion in New York State Rifle & Pistol Association v. Bruen, which clarified the constitutional test for gun control laws. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote for the majority. "To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

Applying that test in the 2023 case Range v. Attorney General, the U.S. Court of Appeals for the 3rd Circuit restored the gun rights of a Pennsylvania man who had been convicted of food stamp fraud. Although that crime was a misdemeanor under Pennsylvania law and did not result in any jail time, it was notionally punishable by up to five years in prison, which triggered Section 922(g)(1).

Similarly, Trump may not end up serving any time in New York even if his appeals are unsuccessful. But the fact that first-degree falsification of business records is punishable by up to four years in prison is enough to make him a "prohibited person" under Section 922(g)(1).

The 3rd Circuit concluded that the Second Amendment requires more to deprive someone of his gun rights. "At root, the Government's claim that only 'law-abiding, responsible citizens' are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from 'the people,'" it said. "We reject that approach because such 'extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.'"

The appeals court was quoting 3rd Circuit Judge Stephanos Bibas, who joined the majority opinion in Range. In a 2020 dissent, Bibas argued that the blanket ban created by Section 922(g)(1) "conflicts with the historical limits on the Second Amendment," which "protect us from felons, but only if they are dangerous." Because "the felony label is arbitrary and manipulable," he noted, many of today's felonies "are far less serious than those at common law." Like Barrett, he emphasized that "the historical touchstone is danger."

Applying Range later that year in Williams v. Garland, U.S. District Judge John Milton Younge ruled that it was inconsistent with the Second Amendment to disarm a Philadelphia man who had been convicted of driving under the influence. Although that offense was a misdemeanor, it triggered Section 922(g) because it was punishable by up to five years in prison.

The policy embodied in that provision is relatively recent. The original prohibition, established by the Federal Firearms Act of 1938, applied only to violent crimes such as murder, manslaughter, rape, kidnapping, robbery, and assault with a deadly weapon. In 1961, Congress expanded the ban to cover nonviolent crimes punishable by more than a year in prison.

Even the American Civil Liberties Union (ACLU), which maintains that the Second Amendment does not guarantee an individual right to arms, has expressed concern about the breadth of the current "prohibited person" categories. Those provisions "too often are not evidence-based, reinforce negative stereotypes, and raise significant equal protection, due process, and privacy issues," the ACLU's deputy legal director, Louise Melling, observed in 2018. One reason progessives should be concerned about those issues: African Americans are especially likely to be disqualified under Section 922(g)(1), even if they have never committed a violent crime, because they are especially likely to have felony records.

Last year, in an Oklahoma case involving the federal ban on gun possession by cannabis consumers, U.S. District Judge Patrick Wyrick highlighted the danger of giving legislators wide discretion to decide which Americans deserve Second Amendment rights. "Imagine a world" where a state "could make mowing one's lawn a felony so that it could then strip all its newly deemed 'felons' of their right to possess a firearm," he said.

Wyrick posed that very hypothetical to the government's lawyers. "Remarkably," he said, "when presented with this lawn-mowing hypothetical argument, and asked if such an approach would be consistent with the Second Amendment, the United States said 'yes.' So, in the federal government's view, a state or the federal government could deem anything at all a felony and then strip those convicted of that felony—no matter how innocuous the conduct—of their fundamental right to possess a firearm."