The Coming Assault On Class-Based Gun Prohibitions
23 Pages Posted: 14 Jan 2025
Date Written: August 23, 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, Gun Violence Reduction
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