An Eighth Circuit panel in U.S. v. Jackson earlier this year stated that the answer to a particular question was no. Yesterday, the court declined to rehear the case en banc, maintaining the same answer within the Eighth Circuit. Judge David Stras, along with Judges Ralph Erickson, Steven Grasz, and Jonathan Kobes (four out of eleven judges on the court), dissented from the denial of rehearing:
Despite having no particular fondness for felons, the panel decision in U.S. v. Jackson conflicts with both the Second Amendment and Supreme Court interpretations. The dissenting opinion referenced the decision in U.S. v. Rahimi (2024) and N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) to argue against the as-applied challenges outlined in Jackson II. The dissenting opinion also criticized the panel decision for insulating felon-dispossession laws from Second Amendment scrutiny and failing to consider as-applied challenges.
Unlike other courts that have entertained as-applied challenges, Jackson II stands out as an outlier post-Rahimi. The dissenting opinion highlighted successful as-applied challenges in other cases, emphasizing the importance of assessing dangerousness in individual cases rather than applying a blanket rule.
In 2024, the court upheld the constitutionality of § 922(g)(1) as applied to the defendant based on his prior convictions, which were seen as credible threats to public safety. However, this decision has been criticized for relying on the “virtue theory,” which was previously rejected in other cases. The argument is that disarming individuals based on their perceived responsibility or law-abiding nature goes against the Second Amendment’s protection of the right to bear arms for all people, regardless of virtue. The court’s decision also fails to adequately compare modern gun restrictions to historical regulations, which allowed for individuals to prove they were not as dangerous as perceived. The burden of a lifetime ban on felons possessing firearms is not justified in the same way as temporary restrictions in historical laws. This decision does not align with the original intent of the Second Amendment and disregards recent Supreme Court rulings on the matter. In the era of the Revolutionary War, various states such as Massachusetts, Virginia, Pennsylvania, Rhode Island, North Carolina, and New Jersey implemented laws prohibiting the possession of firearms by individuals who refused to pledge loyalty. The “Dissent of the Minority,” published by Anti-Federalist delegates in Pennsylvania, argued for the right to bear arms except in cases of criminal activity or public danger.
Early legislatures also enforced laws that required the forfeiture of firearms for non-violent hunting offenses and imposed harsh penalties, including death or loss of property, for deceitful actions. While some of these restrictions may not align with modern constitutional standards, they shed light on the historical context of the right to bear arms.
The historical record indicates that legislatures historically had the authority to disqualify certain groups from owning firearms to prevent misuse by those who did not adhere to legal norms. This is supported by the Supreme Court’s emphasis on protecting the rights of law-abiding citizens to bear arms.
The prohibition on firearm possession by convicted felons is seen as a measure to address potential dangers posed by certain groups. It is not necessary to individually assess each person’s level of dangerousness within a prohibited class. Congress acted in accordance with historical practices when enacting laws such as § 922(g)(1) to address contemporary issues.
The Supreme Court’s rulings in cases like Heller and Rahimi have upheld the constitutionality of laws restricting firearm possession by specific groups deemed to pose a risk of misuse. This historical approach allows for greater regulation than a case-by-case evaluation of each individual’s situation.
In conclusion, legislatures historically employed status-based restrictions on firearm possession, whether to address deviations from legal norms or potential dangerousness. Congress acted within this tradition when enacting laws like § 922(g)(1) and prohibiting felons from owning firearms.
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