Is it constitutional to deny felons the right to bear arms? We pose this Second Amendment quandary to Professor Jake Charles of Pepperdine Law School.
When it comes to excluding felons from the Second Amendment protections, Professor Charles narrows in on a particular phrase within the Amendment as relevant: "the right of the people to keep and bear Arms, shall not be infringed." Within that phrase, "the people," according to legal scholars, may not mean everyone but rather refers to those who are deemed responsible and law-abiding citizens. Under this interpretation, groups can be excluded from Second Amendment protection if they are deemed outside the boundaries of "the people."
Under one such interpretation, the Civic Virtue Theory posits that those who break the law, including felons, have demonstrated a lack of civic responsibility and therefore do not qualify as part of "the people" who have the right to bear arms. This interpretation has been used in the past to uphold laws that bar felons from owning guns. Another interpretation, the Dangerousness Rationale, is also frequently invoked as justification for restrictions on gun ownership. This principle asserts that Second Amendment privileges can be curtailed for individuals who could potentially pose a threat to public safety.
The landmark Supreme Court decision New York State Rifle and Pistol Association v. Bruen further complicates the landscape of Second Amendment law. As Professor Charles explains, Bruen demands an analysis of gun laws under the lens of text, history, and tradition. This shift in legal scrutiny has led to a surge in challenges to the constitutionality of felon-in-posession gun laws. Professor Charles unpacks the historical context, Second Amendment analysis, and the changing legal landscape relating to the ability of felons to keep or bear arms.
Jacob D. Charles is a Constitutional Law scholar and a professor at Pepperdine’s Caruso School of Law.
This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law.
An Interview with Constitutional Law Scholar, Jacob D. Charles
Joel Cohen, Host: The Second Amendment to the United States Constitution states that the right to keep and bear arms shall not be infringed. However, what does that mean when it comes to restrictions on the right to own and keep guns for felons? Today we'll discuss this with our guest, constitutional law scholar Professor Jake Charles of Pepperdine Law School. Jake, let's discuss felony gun laws.
Not Every Gun Law Violates the Constitution
Prof. Charles: Thank you, Joel. One thing we know from the Supreme Court case law is "shall not be infringed" does not mean that every gun law is unconstitutional. The Supreme Court has said, just like the First Amendment right is not unlimited, so the Second Amendment right is not unlimited.
Defining “the People”
Prof. Charles (cont.): One specific phrase in the second amendment has led to a lot of litigation about this so-called felon prohibitor, and that is the "right of the people." The question that courts are confronting is who is included in this class of "the people" who would have been understood to be within "the people" in 1791, or as one recent court suggested, who would be understood as to be within the scope of "the people" today?
Civic Virtue and Dangerousness Doctrines
Prof. Charles (cont.): There are two theories developed around whether those with felony convictions can be prohibited from gun possession. One is the civic virtue theory, which states that at the time of the Constitution's ratification, it was understood that those who did not possess civic virtue, those who were lawbreakers, were not included within the class of "the people" who would have been entitled to possess a gun. The other theory, based on a dangerousness rationale, says that the common understanding was that those who were dangerous or those who had, for example, committed dangerous felony offenses, could be disarmed.
Gun Laws at the Time of the Founding and Today
Host: Were there laws at the time of the founding that restricted gun ownership for people who had been convicted of crimes?
Prof. Charles: There were, not in those specific terms. Most people, when looking to history, raise the level of abstraction and make one or two moves. One is to point out that there were statutes disarming certain groups of people considered to be dangerous, such as Native Americans, enslaved black people, and Catholics who didn't swear loyalty. On the other hand, folks say that at the time of the ratification of the Second Amendment, a felony meant capital punishment. So if you were convicted of a felony offense then the death penalty applied, and if you could kill somebody for commanding a felony offense, then surely you can impose the lesser restraint of taking their guns away.
It wasn't until the 1930s that we saw laws that prohibited some people with felony convictions from possessing guns, and it wasn't until the 1960s that we get the law in its modern form.
Applying Bruen's Text, History, and Traditions Test
Host: I'm surprised that people will make the argument that, because we were able to ban slaves from having guns, we should be able to ban felons.
Prof Charles: I agree, it's disheartening hearing states or judges appeal to these laws in the past to justify restrictions today. On the other hand, this is the test that Bruen seems to demand. The Text, History, and Tradition’s test. And if you are looking to American History to justify gun laws, you’re going to find some pretty profoundly ugly things in the American past. And Justice Amy Coney Barrett, when she was a judge on the Seventh Circuit, appealed to these types of laws to say that tradition shows that legislatures could make judgments about who they thought was dangerous, and that's the justification that permits legislators today to make determinations about who they think are dangerous. Now, we might reject the classifications and say they were wrong in 1791 about who they thought was dangerous and why but the principle that they regulated based on, dangerousness, is a principle that can be applied to gun laws today.
922(g)(1) - Possession of Guns by Convicted Felons
Host: The Supreme Court has not decided to hear a case on this topic but this is heavily litigated. Felony cases may take a disproportionate share of Second Amendment cases overall.
Prof Charles: Absolutely, it is one of the most litigated, if not the most litigated, topic in Second Amendment Law. And particularly, this provision that is called 18 U.S.C. § 922(g)(1), the prohibition on those with felony convictions from possessing firearms. And one of the reasons that it is the most litigated is because the federal government charges lots of people with violating this provision and so they are all going to raise any kind of colorable legal argument they can in their defense.
After the Heller Decision but before Bruen, some courts said that history does not allow the government to prohibit everybody with a felony conviction from possessing guns. Instead it's only people that have certain types of convictions. For instance, Justice Barrett, when she was a judge, said history allows only those with violent convictions, not non-violent convictions like those with mail fraud convictions or Medicare fraud, to be restricted from possessing guns. Other courts, like the third circuit, said actually it's a seriousness test so the government can justify a restriction on someone's gun possession if they were convicted of a serious offense but not a non-serious offense.
Prof. Charles (cont.): However, post Bruen, no courts have said that it's unconstitutional to prohibit anybody with a felony conviction from possessing guns. This might be one small area in which Bruen justifies greater restrictions than the two-part framework that it replaced.
Host: Why is that, professor?
Prof. Charles: If you believe the history that dangerousness or civic virtue were the justifications, then you can justify most of the gun regulations against felony convictions today. For example, there's a classic law review article titled "Why Can't Martha Stewart Possess a Gun?" As she had a felony conviction, she can't possess a gun under federal law unless she gets pardoned. If you're only looking to history and you don't need to justify the law by using modern evidence, then there are some historical evidence that courts can rely on to say well, even that class of people, they're lawbreakers, they lack civic virtue, and they can be consistently disarmed just like the founding generation would have believed.
Gun Rights for Non-Violent Felons
Host: Where's the law now, Professor? What are the trends?
Prof. Charles: We are seeing lots of challenges, consistent with the pre-Bruen landscape. We're not seeing courts vindicating these challenges, meaning no courts are saying these laws are unconstitutional. Except that right now the Third Circuit entertained one of these cases and the Court said in that case that even Bruen allows states to continue this prohibition as to non-violent felons. That case was vacated, meaning it was wiped away by the full Third Circuit, the full appellate court. They said we're going to rehear this case and we're going to decide it as an entire core. Usually, the Court does not do that to agree with what the three-judge panel said. Usually it takes it en banc because it is going to disagree. That case was argued in February and we are waiting for a decision from the full Third Circuit. The suggestion might be that the Court could say this law is unconstitutional as applied to those with non-violent felony convictions.
922(n) - Denying Guns to Those Indicted But Not Convicted
Prof. Charles (cont.): There's another noteworthy development on a little-known federal law. There's a law that says if you are under felony indictment, meaning you've been charged with a federal crime, you may not acquire new guns. No court declared that law unconstitutional after Heller before Bruen, but so far after Bruen, four or five lower courts have already said that's unconstitutional. They've done that based on saying there is no historical tradition of applying these kinds of restrictions to those who are charged with the crime but not yet convicted. That is another prime area in which we are likely to see higher appellate court action and maybe even Supreme Court action because we are seeing inconsistent lower court rulings on that law.
Host: Jake Charles is a constitutional law professor at Pepperdine Law School. Jake, thank you for your time.
Prof. Charles: Thank you, Joel.