The Coming Assault on Class-Based Gun Prohibitions

23 Pages Posted: 24 Sep 2024

See all articles by Ian Ayres

Ian Ayres

Yale University - Yale Law School; Yale University - Yale School of Management

Fredrick E. Vars

University of Alabama - School of Law

Date Written: August 22, 2024

Abstract

Lower federal courts are struggling to determine the constitutionality of longstanding federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms. While Justice Scalia in Heller described such laws as "presumptively lawful," Justice Thomas' more recent Bruen decision holds that essentially all gun regulations are presumptively unconstitutional unless the government can provide sufficiently analogous precedents of gun regulations from the Founding-Era. Some courts applying the Bruen test have had difficulty finding "how" analogs-particularly with regard to the permanent nature of federal prohibitions and their imposition without individualized determination of dangerousness. This essay proposes a number of ex ante and ex post reforms that would simultaneously help to insulate class-based prohibitions from constitutional attack, better target gun restrictions to individuals who pose credible threats to public safety or themselves, enhance individual liberty, and provide greater due process protections. In particular, we propose that state and federal trial court judges ex ante include express individualized determinations of dangerousness in criminal sentencing and involuntary commitment orders. We also propose that Congress refund the existing § 925(c) petition mechanism so that any individual subject to a firearm restriction can ex post receive an individualized determination of whether the restriction is still warranted.

Keywords: Second Amendment

Suggested Citation

Ayres, Ian and Vars, Fredrick E., The Coming Assault on Class-Based Gun Prohibitions (August 22, 2024). Available at SSRN: https://ssrn.com/abstract=4936402 or http://dx.doi.org/10.2139/ssrn.4936402

Ian Ayres (Contact Author)

Yale University - Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-7101 (Phone)
203-432-2592 (Fax)

Yale University - Yale School of Management

135 Prospect Street
P.O. Box 208200
New Haven, CT 06520-8200
United States

Fredrick E. Vars

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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