Academic journal article Notre Dame Law Review

18 U.S.C. S. 922(G)(1) UNDER ATTACK: THE CASE FOR AS-APPLIED CHALLENGES TO THE FELON-IN-POSSESSION BAN

Academic journal article Notre Dame Law Review

18 U.S.C. S. 922(G)(1) UNDER ATTACK: THE CASE FOR AS-APPLIED CHALLENGES TO THE FELON-IN-POSSESSION BAN

Article excerpt

INTRODUCTION

In 2008, the landmark decision announced in District of Columbia v. Heller established that the Second Amendment protects the individual right of "lawabiding ... citizens to use arms in defense of hearth and home." (1) One decade has now passed since Heller was decided, but the Supreme Court has remained largely silent about the scope and applicability of the Second Amendment. (2) Lower courts, as a result, have been left to grapple with the silence. Courts of appeals have formulated frameworks to apply in cases involving constitutional challenges to firearm regulations. This Note will evaluate a current split in the federal courts of appeals--a divide about whether courts should entertain as-applied challenges to the felon-in-possession ban codified in 18 U.S.C. [section] 922(g)(1). This Note will examine most closely a recent decision from the Third Circuit, Binderup v. Attorney General (3) and contemplate the court's analysis as a potential framework to apply going forward.

Part I of this Note outlines the relevant statutory scheme governing the felon-in-possession ban, along with its applicable exceptions. Part II surveys landmark Supreme Court precedent related to the Second Amendment--namely, District of Columbia v. Heller and McDonald v. City of Chicago. In Part III, this Note conducts an overview of the current circuit split percolating in the courts of appeals. Part IV presents a rationale and justification for permitting judicial review of as-applied challenges to [section] 922(g)(1). Finally, Part V provides a critique of the Binderup analysis and puts forth an alternative standard to analyze similar cases.

I. THE STATUTORY SCHEME OF FEDERAL FIREARM REGULATIONS

A. Statutory Scheme

Federal firearm regulations were not commonplace until the beginning of the twentieth century. (4) With the advent of the reform-oriented Progressive Era, crime was perceived "both as a major problem and as a national one." (5) In 1927, the first federal statute to regulate firearms outlawed the shipment of concealable firearms by way of the United States Postal Service. (6) Then in the 1930s, congressional action initiated a wave of new legislation, including the National Firearms Act of 1934 (7) and the Federal Firearms Act of 1938. (8) The National Firearms Act dealt largely with licensing and taxation regulations. (9) The Federal Firearms Act of 1938 extended that regulatory scheme: in addition to expanding the scope of licensing provisions for dealers and manufacturers operating in interstate commerce, the 1938 Act, for the first time, criminalized the possession of firearms (that had been shipped in interstate commerce) by individuals who had been convicted of "crime[s] of violence." (10) And thus began the federal firearms ban against individuals who had "violen[t]" criminal histories (11)--a statutory scheme that continues on robustly today.

Congress enacted a second wave of gun control regulation in the 1960s, in part, as a response to the assassinations of President John F. Kennedy, Robert Kennedy, and Martin Luther King Jr. (12) Just over two months after King was fatally shot, President Johnson signed the omnibus crime control and Safe Streets Act of 1968 into law. (13) The Act's congressional findings note that the "ease with which [criminals] can acquire firearms... is a significant factor in the prevalence of lawlessness and violent crime in the United States." (14) The Act made it "unlawful for any person who is under indictment or who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" from shipping, transporting, or receiving any firearm or ammunition that has been shipped via interstate or foreign commerce. (15)

The felon-in-possession ban remains part of the U.S. Code today. As presently codified, 18 U.S.C. [section] 922(g)(1) makes it "unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm that has "been shipped or transported in interstate or foreign commerce. …

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