I. FELON DISARMAMENT IN THE UNITED STATES:
NOT SO "LONGSTANDING" OR BROAD
II. AMERICAN PRECEDENT--OR NOT--BEFORE
WORLD WAR I
III. ENGLISH ANTECEDENTS, REAL AND ALLEGED
A. "Forfeiture of All Goods"
B. Common Law
C. Game Laws
D. "A Subversion of the Civil Government"
E. "Notoriously Disaffected"
IV. APPLICATION: DISARMING SOME FELONS, TO
SOME EXTENT, FOR SOME TIME
In 2004, domestic diva Martha Stewart was convicted of obstruction of justice, making false statements, and two counts of conspiracy in connection with dubious stock transactions. Although sentenced to only five months in jail plus a period of supervised release, she risked a much harsher punishment. Because she was convicted of a crime punishable by more than a year in prison, federal law bans her from having any gun. (1) Her ban is for life, unless the Attorney General lifts the disability--a decision in his discretion and that he effectively cannot make because Congress regularly bars the Bureau of Alcohol, Tobacco, Firearms, and Explosives from spending any money to review petitions to lift firearms disabilities. (2)
Is the public safer now that Martha Stewart is completely and permanently disarmed? More to the point, how could such a ban be constitutional, now that the Supreme Court, in District of Columbia v. Heller, (3) not only has confirmed that the Second Amendment secures a personal right to keep and bear arms, but also has emphasized its historical tie to the right of self-defense?
The Court, in dicta, told everyone to move along. It asserted, without citation, that "prohibitions on the possession of firearms by felons" were "longstanding" and declared them "presumptively lawful." (4) The D.C. Circuit decision below, which Heller affirmed, similarly offered that bans on felons keeping and bearing arms "promote the government's interest in public safety consistent with our common law tradition" and "do not impair the core conduct upon which the right was premised," primarily self-defense. (5) But it cited only Supreme Court dicta from 1980, (6) which Heller subsequently disparaged. (7) The Fifth Circuit in United States v. Emerson, (8) the first decision of a circuit court to adopt an individual-right interpretation, stated that a ban on possession by felons "is in no way inconsistent with an individual rights model," citing an older Supreme Court dictum stating that bans on carrying concealed weapons do not violate the Second Amendment and a handful of law review articles contending that Founding-era England and America excluded felons from the right to have arms. (9) Emerson's holding, like Heller's, did not involve disarming a felon, although the court did uphold a related federal disability applied to a man subject to a restraining order that included a finding that he was a threat to his wife's physical safety. (10)
The only problem with these politically understandable yet poorly briefed and supported assurances in dicta is that, as explained below in Parts I and II, a lifetime ban on any felon possessing any firearm is not "longstanding" in America. Nor, as Part III shows, is it supported by the common law or the English right to have arms at the time of the Founding. Moreover, it does impair the "core conduct" of self-defense in the home--at least for a felon who has completed his sentence, or someone who shares his household. Similarly, the reasoning of recent state court cases upholding bans on felon possession under state constitutional arms rights is little better than the federal dicta, relying on the same thin claims as Emerson. (11) And earlier state cases upholding various felon arms disabilities after World War II tended breezily to invoke the "police power," (12) which begs the question and amounts to the minimal "rational basis" review that Heller rejected as making a constitutional arms right superfluous with other protections. …