The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The opinion is today's dissent from denial of rehearing en banc in U.S. v. Jackson (8th Cir.), written by Judge David Stras, joined by Judges Ralph Erickson, Steven Grasz, and Jonathan Kobes:
By cutting off as-applied challenges to the federal felon-in-possession statute, Jackson and Cunningham [two recent Eighth Circuit panel opinions] give "second-class" treatment to the Second Amendment. Even worse, they create a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened. I dissent from the decision to deny rehearing en banc.
There's a lot of historical analysis in the opinion, but here's a short excerpt:
[The Jackson panel opinion] identified a few examples from a now-vacated Third Circuit decision and concluded that felons seem enough like Native Americans, slaves, Catholics, and Loyalists for Congress to disarm them too. It never really tells us why, perhaps because it thought it was the defendant's job to connect the dots….
[The panel opinion] makes no effort to draw the necessary connections between colonial-era laws and the felon-in-possession statute. Why were these particular groups targeted? What, if anything, does their disarmament have to do with felons? What lessons can we draw from the history? It is not as simple as saying some groups lost their arms, so felons should lose them too. After all, it goes without saying that we would not allow Congress to indiscriminately strip Catholics and Native Americans, two groups targeted by colonial-era disarmament laws, of their guns today…. [T]he decades surrounding the ratification of the Second Amendment showed a steady and consistent practice. People considered dangerous lost their arms. But being a criminal had little to do with it….
Jackson suggests that "citizens who are not 'law-abiding'" permanently lose their right to keep and bear arms, "whether or not they ha[ve] demonstrated a propensity for violence." The virtue theory views bearing arms as a "civic right" for only the virtuous. Felons, being felons, do not fall into that category, so they lose the right.
The problem is that nothing in the Second Amendment's text supports such a restrictive interpretation. The right to bear arms belongs to "the people"—the virtuous, the non-virtuous, and everyone in between…. The virtue theory also suffers from an even more glaring flaw. If felon disarmament is so obviously constitutional, then why were there "no [Founding-era] laws … denying the right [to keep and bear arms] to people convicted of crimes"? After all, Bruen tells us to find a "historical analogue" and the most obvious one—disarming felons—did not exist in the colonies or early American states.
Jackson tries to explain why: the standard penalty for felonies was death, and dead men don't need guns. There are several flaws with this explanation, the first being that it rests on a faulty assumption. Not all felonies were punishable by death, particularly the non-dangerous ones. Even many first-time violent offenders escaped the death penalty through the "benefit of clergy," including the famous case of two British regulars who were convicted of manslaughter for their role in the Boston Massacre. Jackson's greater-includes-the-lesser argument cannot be right if the greater—the widespread use of death as the punishment for a felony—was itself a fiction.
The second problem is that the argument only works if the greater and the lesser were both punishments for committing a crime. It turns out, however, that disarmament was never one. Death, peace bonds, whippings, hard labor, and prison time were among the punishments available, but conspicuously missing was any dispossession of firearms, much less a lifetime ban on owning them….
Jackson is also wrong to think that Heller completely immunized felon-in-possession laws. To be sure, it did not "cast doubt" on their "presumptive lawful[ness]." But Heller stopped short of saying they are always constitutional, no matter the felon. After all, a measure can be presumptively constitutional and still have constitutionally problematic applications. As-applied challenges exist for exactly this reason….
Perhaps the driving force behind Jackson is prudence and practicality, not text or history. The court is worried about what "felony-by-felony" litigation will look like and whether the new post-Bruen world will be judicially manageable. But the biggest questions all have simple answers. What is the standard? Dangerousness. [The opinion discusses the justifications for that standard earlier. -EV] When will it happen? When a defendant raises an as-applied challenge. What will it look like? The parties will present evidence and make arguments about whether the defendant is dangerous. The truth is that it will look almost the same as other determinations we ask district courts to make every day.
It is not as if assessing dangerousness is foreign. District courts considering whether to release a defendant before trial must consider whether it would "endanger the safety of any other person or the community." And then at sentencing, dangerousness comes up at least twice. The first is when balancing the statutory sentencing factors, including the need "to protect the public." The second is even a closer match: determining whether a defendant must "refrain from possessing a firearm" while on probation or supervised release. It is not clear why making one more determination along those same lines, perhaps even on the same facts, would be so difficult….