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Abstract
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Instead of giving prison sentences for unlawful gun possession, we could simply use firearm forfeiture or confiscation combined with routine administrative inspections for firearms (not inconceivable for supervised release scenarios), with violations of the gun ban resulting in more frequent and comprehensive inspections or other forms of personal accountability.
Assault rifle bans. Gun-free zones. Concealed carry permits. Sentencing enhancements. Of all the firearm regulations we have, or have had, in our country, the most important one is the felon prohibitor, 18 U.S.C. § 922(g)(1). This is the federal statute prohibiting anyone "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year"1 from shipping, transporting, possessing, or receiving firearms.2 For better or worse, this statutory subsection is the centerpiece of gun laws in the United States in terms of impact, enforcement, overlap with other laws, and spillover effects. While the Second Amendment looms in the background and sets the boundaries for how expansive or restrictive our gun laws can be, the felon prohibitor is the center of the gun-regulation universe. Yet the statute and its operation have received too little academic attention, even among scholars who write about gun rights and gun control. Recent estimates of the number of Americans with felony convictions, thus disqualifying them from gun use or ownership, range from nineteen million to twenty-four million,3 a significant percentage of the American adult population.
The felon prohibitor functions as the cornerstone of the federal background check system for firearm purchases, being one of the largest categories of names in the FBI's National Instant Criminal Background Check System (NICS) database, the most frequent reason for denials or "do not sell" responses in background checks, the most common federal gun charge in prosecutions, the basis for most prosecutions of "straw purchasers," and one of the primary grounds for revoking licenses of gun dealers.4 The Supreme Court's landmark decision in District of Columbia v. Heller5 expressly stated, albeit in dicta, that the felon-prohibitor rule remained untouched by the Court's decision. Federal appellate courts that have considered Second Amendment challenges to the felon prohibitor, before and after Heller, have upheld the constitutionality of the statute, though some of the most recent as-applied challenges to it have resulted in a federal circuit split. Current members of the Supreme Court have signaled deep differences among themselves about the constitutionality of the statute in its present form, though the Court has denied certiorari in several cases that would have afforded an opportunity to consider the issue.6
In recent years, some prominent jurists have criticized the statute as being overly broad.7 A growing number of academic commentators have joined in; one line of attack from the academy has been consequentialist, focusing on this law's significant contribution to our mass incarceration crisis and the disturbing racial disparities besetting the carceral system overall, from arrests to prosecutions to sentencing.8 Another line of attack has questioned the historical pedigree of felon-in-possession laws, arguing that this is a modern approach to gun regulation (mid-twentieth century) and not something envisioned by the Founding Fathers.9 A third approach is a more deontological approach, arguing that only "dangerous" felons deserve to be dispossessed of firearms, and that permanently disarming those convicted of nonviolent felonies (various forms of fraud, embezzlement, and perhaps drug possession) is inherently unjust, or at least unreasonable.10 The constitutional implication of a law being unreasonable is that it might not survive whatever level of judicial scrutiny a court applies when faced with a constitutional challenge to the law, especially an as-applied challenge.
This Article, in contrast, sets forth a defense of the felon-prohibitor rule, with some important caveats or suggestions for reform; the argument approaches the problem from four different angles. First, the constitutionality of the law is well settled.11 Every federal circuit has upheld the constitutionality of the federal felon-in-possession law on its face, and (usually) against as-applied challenges; moreover, the Supreme Court denied certiorari in every one of these cases when appealed, leaving in place the universal consensus of the circuit courts. Constitutional challenges continue, but a sudden reversal of direction by the Supreme Court on this point seems extremely unlikely. Second, it is difficult to overstate the centrality of the felon-in-possession laws within our larger framework of firearms regulation and policy; eliminating or even significantly shrinking its scope would cut a gaping hole in our entire national regulatory framework for guns, leading to tremendous disruption in the legal system and myriad unintended consequences.12 Third, the leading counterproposal by the law's critics--to distinguish between "violent" and "nonviolent" felons for purposes of depriving them of firearms--has already proved completely unworkable and convoluted in other closely related areas of criminal law: sentencing under the Armed Career Criminal Act (ACCA), the ratcheted-up charges under § 924(c) for using a gun in a "crime of violence," and separate federal sentencing guideline provisions that increase sentences for "crimes of violence."13 In other words, the proposed alternative sounds nice in theory, but would not work well in practice at all, and would be even worse than the current situation. Finally, this Article attempts to show that the felon-in-possession law is necessary because it is currently one of our only ways to limit the supply of guns streaming into vulnerable, poverty-stricken communities, where most of our country's gun violence occurs. Even if an individual felon does not use his gun to commit any crimes after release, the guns brought into these vulnerable communities by law-abiding gun owners too often end up in the hands of roommates, acquaintances, neighbors, and nearby relatives who borrow, buy, or steal the guns to commit gun violence in that locale. Relatedly, the released felons themselves are also vulnerable. Statistically, they have a markedly elevated risk for suicide, which increases exponentially if they own a gun. Suicides are a significant portion of the gun deaths in our country every year, and even felons convicted of "nonviolent" crimes are a special risk group that deserve protection. In addition, from the standpoint of forging a political consensus on reducing mass incarceration or working toward the ideal of prison abolition, removing guns from those who commit crimes makes incarceration less necessary from a public safety standpoint.
Language: en |