“What’s Brewin’ with Bruen?” Why, and How, We Must Permit Certain Felons to Possess Firearms

Authors

Samuel Roos

Abstract

In the summer of 2022, the U.S. Supreme Court decided New York Rifle & Pistol Association v. Bruen, outlining a new test for the constitutionality of statutes regulating firearm possession. The result has been chaos. In less than a year, U.S.C. § 922(n) and § 922(g)(8), which criminalize possession by specific people involved in the criminal justice system, have been held unconstitutional. Challenges to other federal firearm regulations are flooding the courts.

Notably, § 922(g)(1), which criminalizes possession of a firearm by any person with a felony in their criminal history, has been vigorously challenged. Few courts have yet agreed with these challengers, relying in large part on specific dicta from District of Columbia v. Heller to reject them. That dicta held out certain “longstanding prohibitions” on firearm possession from the scrutiny applied to other gun regulations. However, the dicta is uncited and Bruen did nothing to explain the authority justifying the hold outs. As firearm regulations continue to fall under Bruen’s scythe, questions around § 922(g)(1) will continue to swirl until the law is changed to something more certain. Already, the Third Circuit has held the statute unconstitutional as applied to one defendant, and the District Court for the Northern District of Illinois has held the statute facially unconstitutional.

So how to fill the gap currently band-aided over by Heller’s dicta? Two primary schools of thought are considered herein. One says that the founding fathers desired to disarm “unvirtuous” people, and that all felons are rightly disarmed because they lack virtue, as evinced by their felonious past. The other says that the authors of our constitution believed in disarming “dangerous” people, and that statutes such as § 922(g)(1) should be construed by that standard. This Comment analyzes both potential standards and finds that the “dangerous” standard is better supported by history as well as being the more practical and logical choice.

Recommended Citation

Samuel Roos, “What’s Brewin’ with Bruen?” Why, and How, We Must Permit Certain Felons to Possess Firearms, 128 Dick. L. Rev. 379 (2023).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol128/iss1/11