The Law That Disarmed Trump Is Unfair, Illogical, and Constitutionally Dubious
The president-elect lost his Second Amendment rights thanks to a nonsensical gun ban.
President-elect Donald Trump's sentence of "unconditional release" for violating a New York law that prohibits falsification of business records entails neither jail nor probation. But unless Trump successfully challenges his 34 felony convictions on appeal, he will suffer a lifelong penalty that should trouble civil libertarians across the political spectrum.
Because Trump's convictions involved crimes that were notionally punishable by more than a year of incarceration, they made him subject to a federal law that bars him from possessing firearms. That law is unfair, illogical, and constitutionally dubious because it deprives Americans of their Second Amendment rights even when they have no history of violence.
Manhattan District Attorney Alvin Bragg's case against Trump was based on a vague, convoluted, and highly questionable legal theory aimed at punishing conduct that was not inherently criminal: trying to conceal his 2016 nondisclosure agreement with porn star Stormy Daniels. But even if you think the prosecution was justified, the allegations underlying it provide no reason to believe Trump is prone to gun violence.
The same could be said of many other state and federal crimes that nevertheless trigger the loss of the constitutional right to armed self-defense, such as mail fraud, securities fraud, theft of fishing gear, driving under the influence, perjury, embezzlement, obstruction of justice, nonviolent drug offenses, and gun possession by cannabis consumers. As UCLA law professor Adam Winkler observes, this category of "prohibited persons" is "wildly overinclusive," encompassing a long list of crimes that are "not violent in the least."
People who fall into that category face up to 15 years in prison if they dare to exercise their Second Amendment rights. They also can face additional charges that raise the combined maximum penalties to nearly half a century.
The law that forced Trump to give up his guns is of relatively recent vintage. Congress approved it in 1961 as an amendment to the Federal Firearms Act of 1938, which included a ban on gun possession that originally applied only to people convicted of violent crimes such as murder, manslaughter, rape, kidnapping, and robbery.
That expansion looks newly vulnerable in light of the 2022 Supreme Court decision that said gun restrictions pass constitutional muster only if they are "consistent with this Nation's historical tradition of firearm regulation." Applying that test in 2023, the U.S. Court of Appeals for the 3rd Circuit restored the gun rights of a Pennsylvania man who had understated his income so he could qualify for food stamps.
"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'" whose right to "keep and bear arms" is constitutionally guaranteed, Judge Thomas Hardiman wrote in the majority opinion. "We reject that approach because such 'extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.'"
Last May, the U.S. Court of Appeals for the 9th Circuit overturned the firearm conviction of a California man who was prohibited from owning guns because of prior convictions for nonviolent offenses. In defending the "sweeping, no-exception, lifelong ban" that the defendant violated, the court said, the government had failed to cite a "well-established and representative historical analogue" that "impose[d] a comparable burden on the right of armed self-defense" and was "comparably justified."
Since the Supreme Court announced that test, several other appeals courts have rejected Second Amendment challenges to prosecutions under this law or to the ban itself. Dissenting in the 9th Circuit case, Judge Milan D. Smith Jr. predicted that the Supreme Court will address that split "sooner, rather than later."
The resolution of this dispute may not ultimately matter for Trump, who has several promising arguments for overturning his New York convictions and in any event will receive armed, taxpayer-funded protection as a current and former president. But it could provide long-overdue relief for millions of Americans who have unjustly and unreasonably lost their Second Amendment rights.
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