In Defense of Felon-in-Possession Laws

Introduction

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.

On the other hand, the current sentences for felon gun possession are admittedly far too long. The contribution that these laws make to the problem of mass incarceration and racial inequality is a serious downside that merits a serious response and reform. 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.

A roadmap for what follows: Part I will provide a quick overview of the courts’ view of the constitutionality of the statute, starting with the Heller decision, but devoting special attention to the Supreme Court’s most recent decision, Greer v. United States,14 in which the Court addressed the mens rea requirement for the federal felon-in-possession statute and ignored the Second Amendment challenges to the same statute that went up to the Court as petitions for review in the same term. Part II addresses the centrality of felon prohibition to our gun regulation overall, and it situates the statute within the system of background checks for gun purchases, the gun dealer license regime, and other gun laws. This Part also contains a brief enactment history of § 922(g)(1) and some of its surrounding code sections that define its operative terms and parameters.

Part III explains the impracticality and infeasibility of the proposed alternative to apply the firearm prohibition only to “dangerous” or “violent” felons—or, more accurately, to use as-applied constitutional challenges to ensure that it does not apply to nondangerous or nonviolent felons. Part IV focuses on some of the social benefits of the felon-in-possession laws, in protecting vulnerable communities by reducing the supply of guns there, in protecting felons from death by suicide, and in using disarmament as an alternative to long-term incarceration. The conclusion lays out some closing observations and caveats and offers suggestions for further research and academic discussion.

I.  Constitutional Challenges to the Felon-in-Possession Law

A.  Unanimous Circuits and Dozens of Cert Denials

The Supreme Court’s decision in District of Columbia v. Heller changed the legal landscape for Second Amendment challenges to statutes because it recognized an individual right to keep and bear arms.15 The opinion itself, however, included some important caveats:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.16

Although this was dicta in the original opinion, in its follow-up decision two years later, McDonald v. City of Chicago, the Court repeated these assurances.17 More recent opinions suggest the Justices still hold this view.18

Since Heller, all eleven of the numbered federal circuit courts, as well as the D.C. Circuit, have considered and rejected Second Amendment challenges to the felon-in-possession laws.19

As Jacob Charles explains, the circuit courts vary in their methodology—some holding that felons are outside the protection of the Second Amendment, others applying intermediate scrutiny and upholding the statute, and one or more suggesting that as-applied challenges are theoretically possible for those with federal felony convictions.20 In the end, all the circuits have now agreed to uphold § 922(g)(1) against facial challenges based on the Second Amendment. The as-applied challenges by those with “nonviolent” federal felony convictions have also failed.21 Moreover, since Heller, the Supreme Court denied certiorari at least twenty-four times in cases involving Second Amendment challenges to § 922(g)(1).22

At this point, it is puzzling that these challenges continue to come, and to generate certiorari petitions most years—but they do. It is hard to imagine a more settled point in Second Amendment jurisprudence than one considered and decided congruently (albeit via different approaches) by every federal circuit, and where the Supreme Court has consistently declined to consider appeals. It seems unlikely that the Court would abruptly reverse course and take one of the appeals and reverse all the circuits at once anytime soon, even with the recent turnover on the Court.

Such a settled consensus about the constitutionality of any gun law is a rarity and serves as a stable point of agreement to start discussions of the many unsettled questions in Second Amendment jurisprudence and firearm policy. Even beyond the bipartisan legislative consensus on the issue, the felon-in-possession law also has a judicial consensus around it, to such an extent that it is worth preserving.

B.  The Rehaif Problem and Greer

In Rehaif v. United States, a 2019 case, the Supreme Court held that to sustain a conviction for unlawful firearm possession under any subsection of § 922(g), “the Government . . . must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”23 To violate the statute “knowingly,” the defendant (an immigrant) needed to know that his expired student visa meant he was unlawfully in the country.24 Rehaif itself was not about felons, but the Court’s holding implied that the same scienter requirement would apply to all sections of § 922(g), including felons; as the Court explained, “Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’”25 To clarify: Under Rehaif, prosecutors must prove, as elements of a gun possession offense, that the defendant (1) knew he possessed a firearm or ammunition, and (2) knew he was a felon, or an immigrant in the country unlawfully, or dishonorably discharged from the military, or a current user of illegal narcotics, etc. Prosecutors need not show that the defendant had knowledge of the firearm prohibition itself—that is, that the defendant’s felon status disqualified the individual from possessing a firearm or ammunition. Knowledge of one’s status is necessary, but not knowledge of the gun statute itself.

Greer v. United States, a 2021 case, gave the Supreme Court an opportunity to address the scienter requirement for the federal felon-in-possession law directly.26 The Court consolidated the Greer case27 with a similar case, United States v. Gary.28 This opinion was a natural follow-up to the Court’s 2019 decision in Rehaif. In Greer, this meant the defendants needed to know that they were, in fact, convicted felons. Justice Kavanaugh wrote a short opinion for the majority. The decision was unanimous on the main points,29 though Justice Sotomayor concurred in part and dissented in part.30 Whatever differences there may be among members of the Court about the Second Amendment, there appears to be a consensus about the legitimacy and value of the felon-in-possession statute.

The convictions of Greer and Gary under the felon-in-possession statute occurred prior to the Court’s decision in Rehaif.31 Greer’s conviction was from a jury verdict, but the jury instruction omitted the mens rea element.32 Gary pled guilty without knowledge of the additional element.33 Both defendants raised the issue for the first time on appeal,34 so the Court analyzed their Rehaif claims under plain error review. The Court held that plain error review under Rehaif requires that defendants show that they would have presented evidence at trial to prove that they were unaware of their status as convicted felons. Neither Greer nor Gary had done that, so their convictions could stand. Gary and Greer failed to show that the errors affected their substantial rights. Greer had to show that, but for the jury instruction’s lack of the Rehaif scienter element, there was a reasonable probability that a jury would have acquitted him.35 Gary had to show that, but for the Rehaif error during the plea colloquy, there was a reasonable probability that he would have gone to trial rather than plead guilty.36 Greer and Gary failed to meet their burdens because there was evidence that they both knew they were felons. The Rehaif scienter element is mostly toothless, because as the Court states, “If a person is a felon, he ordinarily knows he is a felon.”37 In sum, the outcome in both cases would not have changed with an additional scienter instruction, as both defendants knew they were felons based on their own criminal records.

The subtle procedural questions before the Court regarding the application of plain error review in particular38 may help explain the consensus among Justices who normally would disagree about gun control and Second Amendment rights. Greer is indeed consistent with other recent decisions39 about “plain error review,” requiring that a defendant show on appeal “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.”40 This is an “uphill climb” for defendants, as Justice Kavanaugh noted.41 In that sense, the holding in Greer was unsurprising.

Justice Sotomayor wrote separately42 to concur with the majority’s denial of plain error relief to Greer, but would have limited the majority’s analysis solely to plain error review, not cases that allege harmless error.43 On the other hand, she disagreed with the portion of the majority opinion that determined that the Rehaif error did not affect Gary’s substantial rights.44 Though most of her dissent focused on the different rules for appeals of “harmless error” versus “plain error” (the former are more favorable to defendants), she also took notice of a few relatively commonplace scenarios where someone might misunderstand their status, such as juvenile offenders or those who plead guilty to a felony but serve little or no jail time, being sentenced instead to probation.45

For purposes of this Article, it is significant that the Court stated repeatedly that most felons know they are felons, e.g., “As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons.”46 Again: “Felony status is simply not the kind of thing that one forgets.”47 Thus, proving this point is usually a mere technicality for prosecutors.48

The Greer opinion does not mention the Second Amendment even once; neither did the lower court opinions in the cases. The leading advocacy groups for gun rights, such as the National Rifle Association, did not file amicus briefs, and the decision went unnoticed on many popular gun-rights blogs.49 So, in one sense, this was not a big decision in the field of gun rights or firearm policy. The “new” requirements imposed on prosecutors in Rehaif and Greer for bringing charges under § 922(g) amount to little more than a formality, and Greer sinks all except the most exceptional of post-Rehaif appeals from defendants sentenced before that case was decided. From a practical standpoint, Rehaif and Greer left prosecutors and defendants in these cases in the same position they were in before.

On the other hand, there are several reasons that Greer matters a lot. As discussed in the first Section of this Part, this statute itself has been the target of numerous Second Amendment challenges in every circuit, and the Court has denied certiorari in two dozen of these cases.50 Even without the petitioners in Greer raising a Second Amendment issue, it was surprising that none of the Justices, even the most ardent supporters of Second Amendment rights, wrote a dissent or concurrence in this case, arguing that the prosecutors should also have to prove the present dangerousness of the felon or that the prior conviction was for a violent felony. The Court could have easily requested briefing on the issue and included a Second Amendment section in the opinion, requiring prosecutors in gun possession cases to also prove that the defendant has a predilection to violence or poses an ongoing danger to the community. Greer could have been a Second Amendment case; though I hesitate to argue that silence—the Court’s repeated denials of certiorari in the challenges to the statute, combined with seemingly sidestepping the issue in this opinion—sends a signal about the Justices’ views on the outer bounds of the Second Amendment.

In terms of day-to-day governance, § 922(g) is the centerpiece of firearm regulation in this country, our most enforced gun law in terms of arrests and convictions. Conservative Justices seem to agree; as Justice Alito stated in his dissent in Rehaif:

And § 922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.51

Most of Justice Alito’s dissent in Rehaif was about the prospect of appeals like the one in Greer,52 and the Greer decision addressed most of Justice Alito’s concerns in this regard by rendering such appeals futile, with rare exceptions. This stands in contrast with his dissent in New York State Rifle & Pistol Ass’n, Inc. v. City of New York, joined by Justices Gorsuch and Thomas in part, where his absolutism about the Second Amendment might have led readers to think he would be more sympathetic to challenges to the felon prohibitor.53 If the conservatives and liberals on the Supreme Court represent in microcosm form the long-standing, partisan gridlock on gun policy, § 922(g) appears as a rare point of agreement. It may be the only type of gun regulation that garners such bipartisan support.

C.  Continuing Attacks on the Felon-in-Possession Laws

Despite how settled the courts are on this issue, commentators continue to argue that the felon-in-possession statute is unconstitutional under a text-history-tradition analysis. Joseph Greenlee, for example, recently argued54 that the felon-in-possession law lacks historical pedigree, even though federal felon-in-possession laws have been in force for all felons for over fifty years, and sixty years for “violent felons”—around a fourth of the total time since the Second Amendment’s adoption in 1789. Greenlee asserts that “there is no historical justification for completely and forever depriving peaceable citizens—even nonviolent felons—of the right to keep and bear arms. Nor . . . unvirtuous citizens.”55 He bases this claim on a selective examination of English and American legal history.56 Greenlee concludes that precolonial English law went no further than disarming “violent and other dangerous persons.”57 He acknowledges, however, that throughout English history “disloyal” or “seditious” individuals could be disarmed.58 He then proceeds to survey similar laws from the colonial and founding era in the United States, working around to his conclusion that ideas of “unvirtuous citizens” lack historical justification.59 Greenlee examines and debunks several sources that are commonly cited in support of the “unvirtuous citizen” theory,60 concluding that there is no historical justification whatsoever for disarming unvirtuous citizens. “History shows that the right could be denied only to mitigate threats posed by dangerous persons. Therefore, firearm prohibitions on peaceable citizens contradict the original understanding of the Second Amendment and are thus unconstitutional.”61 Greenlee does not address the practical difficulties in courts assessing which individuals are “dangerous,” regardless of the charges to which they may have pleaded guilty, or the method by which courts should determine which felonies are “violent.”

An article by Professor Royce de R. Barondes makes a similar historical pedigree argument against the constitutionality of modern felon-in-possession laws.62 He samples numerous sources purporting to discredit the idea that the Second Amendment protects only “virtuous” citizens.63 He concludes, “The Founding-Era restrictions, detailed in this Article, were tailored to the circumstances and do not provide a foundation for the broad, essentially permanent bans that federal law provides and that courts typically validate.”64

Some federal circuit court opinions have already considered and debunked these historical arguments.65 One particularly compelling rebuttal to the historical pedigree argument is the forthcoming article by Joseph Blocher and Caitlan Carberry, who start with the well-documented fact that the founding generation often prohibited gun ownership for groups deemed “dangerous” to society or the local community, some of whom (like Native Americans or political dissidents) would not be subject to such laws today.66 Reasoning by analogy, they argue that the question should focus not on whether a group or class (like felons) would have been the target of founding-era disarmament laws, but rather on the notion that the founders thought the legislature should decide which groups pose a threat to the social order or the community.67 In the modern era, those with felony convictions are the group the legislature deems to be in this category, rather than the groups in that category two centuries ago.68

There are additional problems that make the historical pedigree argument unconvincing. Most felons in the common law era faced execution, not years of incarceration in a penitentiary followed by release. There were no long-term prison facilities in the founding era. Of course, there were exceptional cases where felons received various forms of leniency (punishment other than death) or pardons. But these are exceptions that prove the rule. Jury nullification also occurred, but in such cases the defendants were not felons—they received acquittals. The framers could not have intended Second Amendment guarantees to apply to felons if, as a rule, all the felons were dead.69 There were undoubtedly fewer felonies in the founding era laws than today, as modern technology and the population density in our cities have brought new ways for bad actors to injure large numbers of people indirectly (as with emitting pollutants into the environment) or financially (as with securities fraud, check fraud, and counterfeiting). Rigorous historical inquiries are a complex matter—the domain of an entire field of academia—and are outside the institutional competency of courts.

Most of the recent academic attacks on the felon-in-possession laws have focused not on arcane historical arguments, but on the perceived unfairness of treating “nonviolent” felons the same as “violent” ones.70 Many of these harken back to the classic (or perhaps clichéd) “Martha Stewart” argument71: i.e., a harmless-looking decorating-and-cooking show host like Martha Stewart, who has a felony conviction related to insider trading and lying to authorities, and who is now ineligible to own a gun. These recent publications—mostly student notes—take the unfairness idea and turn it into a constitutional argument for granting as-applied Second Amendment challenges to the felon prohibitor, because a law’s reasonableness matters for the intermediate scrutiny analysis most courts apply in these cases. This alternative proposal, to disarm only “dangerous” felons but invoke the Second Amendment to guarantee the gun rights of “nondangerous” ones, is the subject of Part III.72 The Martha Stewart example, however, merits some discussion.

First, there is no reason to think that she, or most harmless-seeming felons of her ilk, find their lack of gun ownership particularly burdensome, or that they would buy guns if they could. Most Americans do not own guns even if they are eligible,73 so we cannot assume that significant numbers of former white-collar felons are anxious to arm themselves. More importantly, there are striking counterexamples like Al Capone, the notorious Chicago mobster whose eventual conviction was for the nonviolent crime of tax fraud.74 The “Al Capone problem” for differentiating dangerous from nondangerous felons is that the underlying charges of the felon’s conviction may not represent the individual’s level of violence or future dangerousness at all. Several courts have recently made similar observations about the Al Capone problem.75 Moreover, even if an appellate court in an as-applied challenge ignored the category of conviction and instead inquired into the individual’s dangerousness, it is not clear what quantum of proof the government would need for the court to uphold the constitutionality of the firearm deprivation in that case. The government may prosecute violent felons like Al Capone for nonviolent felonies because it does not have enough admissible evidence to prove the violence-related charges—some of the most violent criminals are also adept at hiding their tracks or intimidating potential witnesses. Charges like tax fraud, money laundering, or other types of fraud are safer bets for ensuring a conviction and are suitable substitutes for other types of charges. In fact, part of Congress’s motivation in passing laws that make nonviolent crimes felonies is to facilitate the arrest and prosecution of violent criminals who otherwise elude the authorities, a point that William Stuntz and other commentators have observed.76

The most valid criticism of the felon-in-possession laws, though not exactly a constitutional argument, is their contribution to the mass incarceration and its concomitant racial inequalities. This is a point eloquently explained by Jacob D. Charles and Brandon L. Garrett in a forthcoming article.77See Charles and Garrett, supra note 8, at 54–58 (discussing the severity of sentencing under federal gun laws and the resulting effects on incarceration rates, as well as the racial disparities in enforcement, conviction, and sentencing). Other commentators have similarly observed that the problems that characterized the War on Drugs, like the mushrooming of the carceral state and its troubling racial component, also characterize the penal system’s application of gun laws.78 These are legitimate concerns that deserve attention from lawmakers, but such big-picture social issues do not necessarily translate well into an as-applied constitutional challenge by an individual felon who wants to acquire firearms long after their release from prison. It is instead an argument for shortening or eliminating the prison sentences for unlawful gun possession, a reform that is long overdue. This is a problem with sentencing policy, not with the legality of the felon-in-possession statute itself.79

II.  The Centrality of the Felon-in-Possession Laws in Firearms Regulation Overall

Felon-in-possession laws are at the center of regulating firearms ownership in the United States—the background check system for purchases, federal licensing for gun dealers, concealed carry permitting, and gun-related arrests and convictions. Gun regulations nationwide are a complex fabric of state and federal laws regarding the types of weapons that are legal, age restrictions, transport rules, gun-free zones, and use restrictions (ranging from hunting regulations to criminal penalties for shootings or even brandishing weapons). From an ex ante perspective—controlling who has weapons in the first place—the felon disarmament is the centerpiece of the policy framework and has the greatest everyday impact. From an ex post perspective—punishing firearm-related misconduct after it occurs—another federal statute in the same volume of the U.S. Code, § 924, is probably the most impactful, seconded by relevant sections of the sentencing guidelines. This latter law is reactive, however—it comes into play only after misconduct (and often tragic injuries or deaths) have occurred. In that sense, after-the-fact punishments for crimes are not “gun control” in the proper sense, but instead they are mostly state retribution against wrongdoers. “Gun control” in its proper sense of ex ante restraints revolves around the felon-in-possession laws, for better or worse.

A.  The Most Frequently Enforced Gun Laws

Unlawful possession laws are the most enforced gun laws we have. For example, the most recent comprehensive study of gun-related arrests in Illinois concluded, “The majority of people arrested in Illinois for gun crimes are arrested for the illegal possession of a gun.”80 The proportion of arrests for gun possession out of all gun crimes has been steadily increasing, and in Illinois is currently 72%.81 There are disturbing racial disparities in the arrests and convictions for gun possession crimes. “Between 2014 and 2019, increases in arrests [in Illinois] for the illegal possession of a gun drove overall increases in gun arrests. . . . Among those arrested specifically for the illegal possession of a gun, 69% were Black, 94% were male, and roughly 50% were under the age of 25.”82 Most of those arrested for unlawful gun possession have prior arrests and most have prior convictions.83 Approximately two-thirds of the arrests for illegal gun possession also involve charges for other nonviolent crimes, a third of which are felony charges.84 Practically speaking, unless the police are conducting stop-and-frisk operations, they are most likely to discover unlawfully possessed firearms while investigating or making arrests for other crimes, such as drug possession or theft.

A follow-up study in Illinois in 2021 found that 81% of unlawful possessions were for various prior felony convictions and 12% were for other unlawful possessions (armed habitual criminal, serial numbers defaced, stolen firearms, or possession by a gang member).85 At the same time, the report observes, “The vast majority of those sentenced to prison for firearm possession offenses were not arrested for a violent crime within 3 years of release from prison,”86 though a prior conviction for violent crime did correlate with subsequent arrests for other violent crimes.87 Felon-in-possession convictions are increasing as a share of our penal system: “[A]dmissions to prison for firearm possession offenses have accounted for a growing share of total admissions; in 2014, firearm possession offenses accounted for 12% of all prison admissions in Cook County, jumping to 27% of all admissions in 2019.”88

Also, the sheer number of people who fall under the felon-in-possession statute shows the scope of its impact. As mentioned in the introduction, recent scholarly estimates of the number of former felons range from 19 million89 to 24 million.90 This is a surprisingly difficult number to derive, because no government entity tracks the total number of living citizens who have either state or federal felony convictions.91 The most recent estimates by empirical researchers on the current number of felons who unlawfully have firearms is around 100,000 nationwide.92 While this is a number large enough to warrant more attention from law enforcement agencies, which was a main conclusion of the researchers,93 it is a tiny number relative to the total number of felons disqualified from gun ownership, meaning the vast majority of felons are complying with the firearm prohibition at this time.

According to a report by the United States Sentencing Commission, in fiscal year 2020, there were 6,782 convictions in federal court under § 922(g), mostly felon-in-possession cases.94 That number represents 10.5% of all federal cases, and the 2020 numbers are in the same range as the three preceding years.95 A high percentage—97.6%—of felon-in-possession offenders were men; the average age was 35 years.96 More than 96% received prison sentences, with the average being 62 months; the sentences are inconsistent, however, because offenders sentenced under the ACCA receive, on average, sentences more than three times as long as those not sentenced under that statute.97

B.  The Origins Story

How did we get here? Without belaboring the entire legislative history,98 the original 1938 federal firearm disqualification statute was the first federal law that banned gun sales to and firearm possession by any felons and misdemeanants convicted of a statutorily defined “crime of violence.”99 Twenty-three years later, in 1961, Congress amended these prohibitions to include anyone convicted of a “crime punishable by imprisonment for a term exceeding one year.”100 Following the assassinations of President Kennedy, Robert Kennedy, and Martin Luther King, Jr., Congress passed the Gun Control Act of 1968 (GCA), which further redefined which individuals were ineligible to possess firearms.101 The felon prohibitor, codified at 18 U.S.C. § 922(g)(1), finalized the definition in its current form—anyone convicted of “a crime punishable by imprisonment for a term exceeding one year.”102 A related section, 18 U.S.C. § 922(d)(1), makes it illegal to sell firearms to felons, using the same descriptor as § 922(g)(1)—this applies both to licensed gun dealers and private individuals who sell a gun to an acquaintance.103 Note that the Gun Control Act (GCA) added some additional categories of prohibited persons, outside the scope of this Article, such as illegal drug users.104

The Brady Handgun Violence Prevention Act of 1993105 introduced the background check system that verifies whether the prospective buyer falls within one of the prohibited categories under the GCA.106 Initially, there was a waiting period and local law enforcement was supposed to verify the person was eligible, but the Supreme Court rejected this arrangement as violative of the Tenth Amendment in Printz v. United States.107 The Brady Act also instructed the FBI to develop a computerized instant background check system, which it did: NICS launched in 1998.108 The Violent Crime Control and Law Enforcement Act of 1994 added one new category of prohibited persons to § 922(g): those with domestic violence or stalking restraining orders.109 Congress has twice acted to upgrade the NICS system and bolster reporting by law enforcement and other agencies to the database—the NICS Improvement Amendments Act of 2007,110 which offered financial incentives and penalties to get more state agencies to contribute records, and the Fix NICS Act of 2018,111 which mostly directed more federal agencies to submit relevant records directly to the NICS databases.

Two supporting statutes for § 922(g) deserve mention at this point, both of which will receive closer attention in Part III. A definitional exclusion section that appears in § 921(a)(20) exempts from the firearm disqualifier any “antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,”112as well as state misdemeanors with punishments of less than two years.113 In addition, § 925(c) contemplates a process for petitions to obtain administrative exceptions or relief from firearm ineligibility,114 but Congress has expressly defunded implementation of the subsection for many years, making it legally inoperable.115

C.  Felon Prohibitions and the Background Check System

Most firearm purchases from federally licensed dealers (FFLs) require background checks.116 The background check questionnaire (ATF Form 4473)117 asks the purchaser to check a box (“Yes” or “No”) for each of the nine prohibited categories under § 922(g), starting with whether they have a felony conviction,118 typically yielding a response within minutes. If the buyer checks “Yes,” the FBI’s NICS system automatically denies the purchase. If the buyer checks “No,” the NICS system will compare the purchaser’s name against three federal databases for records of any of the nine prohibited categories. Those with felony conviction records in the system fail the background check. Even so, denials (for all causes) result from only 1.27% of the millions of background checks every year.119

When felons fail a gun purchase background check, usually nothing happens to them—they just leave the premises and go on their way—even though they just committed a felony by trying to buy a gun.120 The Government Accountability Office (GAO) has observed the lack of prosecutions for violations in this area, which thwarts the effectiveness of the law, and the GAO suggested improving this by adopting new policies for notifying local law enforcement.121 In most states, gun sales by private, unlicensed parties do not entail a background check, so felons who fail a licensed dealer’s background check might then go obtain a gun on the secondary market from a private seller.122 Though such purchases are illegal, there is no easy way to prevent them without universal background checks.

At the time of this writing, there are 4,788,917 individuals with felony records in the NICS database.123 This is only a small fraction of the 19 to 24 million convicted felons in the United States, as discussed above, which highlights the scale of the NICS underreporting problem. The total records in the NICS system—everyone who would fail a background check—is 24,832,855 as of September 30, 2021.124 By comparison, there are now more than 10 million records for unlawful immigrants.125 For many years, felons were the largest category of prohibited persons in the NICS system, but this group has very recently moved into third place, after “Illegal/unlawful Aliens” and those with “Adjudicated Mental Health” disqualifiers, due to increased record sharing between federal agencies.126

Even though there are more than twice as many unlawful aliens in the database as convicted felons, felons make up (by far) the largest share of background check denials during the period from 1998–2021.127 As of September 30, 2021, 1,038,235 denials had been for felony convictions, compared with only 38,438 for illegal or unlawful immigrants.128 The number of denials from background checks surpassed 300,000 in 2020 (a new all-time record) as firearm sales spiked during the early months of the Covid-19 pandemic and the George Floyd protests around the country, and approximately forty-two percent of the denials were due to felony convictions.129 In other words, NICS denials due to felony convictions are nearly equal to all other disqualifiers combined.

The felon-in-possession laws facilitate law enforcement investigations by providing alternative grounds for investigators or police to obtain warrants or make arrests.130 Defendants may plead guilty to felon-in-possession charges in exchange for the prosecutor dropping other charges.131 This means that a certain number of defendants convicted solely for being a felon in possession had committed other crimes as well, but the other charges disappeared as part of the plea deal. Conversely, defendants may offer to plead guilty to other charges to have the felon-in-possession charge dropped.132 Plea bargaining occurs, at least partly, in the shadow of the felon-in-possession laws. In many cases, a firearms possession charge is on the table and is one of the items either party could exchange for something else. Even in cases where gun possession charges are absent, any felony conviction—whether by plea agreement or after trial—renders the defendant forever ineligible to own firearms, even if a sentence is complete or the sentence did not include additional jail time. This incentivizes defendants who place a high value on owning guns to plead to misdemeanor charges rather than risk a felony conviction at trial. On the other hand, prosecutors dropping all remaining charges, in exchange for the defendant pleading guilty to a single felony, still offers the benefit of permanently disarming the individual, which could be a valid public safety consideration.

The Department of Justice (DOJ) reported in August 2020 that the Internal Revenue Service (IRS) had finally begun entering records directly into the NICS Indices in 2019.133 As a result, the IRS entries in the felony category in the NICS database jumped from 119 in November 2019 to 28,277 by March 2020.134 Similarly, the U.S. Postal Service Office of Inspector General (USPS-OIG) entries increased from just 25 entries in January 2019 to 1,240 by March 2020.135 These entries are primarily for felonies and indictments, and the agency submitting the records likely indicates the nature of the crimes, such as tax-related crimes for the IRS and mail fraud for the USPS-OIG.136 These numbers are interesting for several reasons. First, as the DOJ report itself strives to make clear, NICS underreporting of crimes or newly prohibited persons has been a long-standing problem; many prohibited persons can pass a background check and purchase weapons if their personal records are not yet in the system. The 2018 Fix NICS Act imposed new requirements on federal agencies to feed records into the NICS system,137 and the Semiannual Reports show an increase in records in the NICS system from various federal agencies, states, and tribal authorities.138 In addition, it is possible that the dearth of cases involving felons with tax fraud convictions, or other regulatory nonviolent offenses, may have been due to such records not being included very often in the NICS system. It will be interesting to see if the dramatic increase in record-sharing by federal agencies for regulatory-based felony convictions will result in an increase in court challenges by such individuals when they are unable to purchase weapons.

D.  Felon-in-Possession and Straw Purchaser Cases

The felon-in-possession laws, in tandem with the background check system, are also the crux of straw purchaser statutes, § 922(a)(6)139 and § 924(a)(1)(A).140 A straw purchase occurs when an individual who can pass a NICS background check purchases a firearm on behalf of someone else—a friend, relative, or criminal co-conspirator—who cannot pass a background check.141 This is typically someone with a felony conviction,142 as opposed to other prohibited categories under § 922(g).

The laws are not merely to keep guns away from felons, but to enforce the transfer records that enable law enforcement to trace guns recovered from crime scenes. The background check form, officially called the Firearms Transaction Record143 of ATF Form 4473, expressly asks the applicant:

Are you the actual transferee/buyer of the firearm(s) listed on this form and any continuation sheet(s) (ATF Form 5300.9A)? Warning: You are not the actual transferee/buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual transferee/buyer, the licensee cannot transfer the firearm(s) to you.144

Purchasers who are in fact buying the gun for someone else must untruthfully answer this question in the negative for the NICS system to approve the transaction, so the charges for straw purchasers are “making false statements” to a gun dealer under § 922(a)(6) and § 924(a)(1)(A).145 “The overwhelming majority of gun purchasers are male, and most straw purchasers are male. However, when a woman buys a gun, she is disproportionately likely to be buying it illegally for a prohibited purchaser.”146 Researchers indicate that straw purchasers are a significant source of guns for street gangs.147 The straw purchaser prohibitions, and the enforcement of the law, would mostly disappear without the felon-in-possession laws. Relatedly, a main function of the federal licensing regime for gun dealers (Federal Firearm Licensees, or FFLs) is to prevent sales to felons.148

E.  Do the Laws Work?

From the standpoint of picking gun laws to repeal or invalidate, the felon-in-possession law is one that would leave the biggest hole. Whether the felon-in-possession law is “working” is another question, and any answer to that question depends on a host of assumptions and definitions. Does a penal law “work” only if it reduces the targeted crime to zero? Can we consider a policy effective if it reduces the targeted crime to a measurable degree? In terms of cost-benefit analysis, costs of enforcement are hard to quantify (do we include some prorated share of the collateral social costs of mass incarceration?), as are benefits (statistical lives saved, or public perceptions of safety and security?). This Article will not attempt to answer these questions definitively here. That said, there would be significant costs to removing the rule in its present form from our firearm regulatory framework in terms of disruption, confusion, and unforeseeable consequences.

Empirical evidence shows that the felon-in-possession laws, combined with the modernized background check system that has emerged in recent years, have a significant positive impact. As Garen Wintemute wrote in 2013:

Some argue that denial simply prevents ineligible persons from acquiring firearms from licensed retailers and note that firearms can easily be obtained from private parties. . . . The evidence is, however, that criminal firearm markets do not function smoothly; firearms are not always easily obtained through them. We have no data on how frequently firearm acquisitions are merely redirected by purchase denials and not prevented.149

Wintemute cites studies showing that background checks, together with sales record-keeping requirements imposed on licensed dealers, induce many prohibited persons, such as felons, to avoid licensed gun dealers.150 In states with universal background checks—where even private sellers must have a nearby licensed dealer run a background check and create a record of the sale—there is measurable interference with the criminal firearms markets.151 And other studies suggest that those who fail a background check, meaning a denial of their attempted gun purchase, are less likely to commit new crimes, as indicated by a reduction in arrest rates after the denial.152 One study found the same phenomenon—lower rates of arrest following denials of background checks—specifically for those with felony convictions.153 On the other hand, it is important to remember that most of those who commit gun crimes do not have prior felony convictions, nor do they have other disqualifications under the Gun Control Act. “This evidence suggests that most of those who commit firearm-related violent crimes are eligible to purchase firearms, under federal standards at least, at the time the crimes are committed.”154

Regarding transaction-cost analysis, background checks raise the transaction costs of gun crime—any distribution or ownership restrictions affect price. Firearm prices (legal or black market) are subject to supply and demand, though gun prices are unique because of the commodity’s durability and how well guns hold their resale value over time. Easy availability or ownership of guns lowers the transaction costs for certain criminal or borderline activities.

These laws’ central role means abolishing them or significantly narrowing them would have far-reaching consequences for firearm policy and public safety overall. Abolishing or curbing the felon-in-possession rule, either by legislative repeal or judicial invalidation, would jeopardize our entire regulatory framework for gun control.

F.  Unlawful Possession Removal Petitions: The Ayres-Vars Proposal

In their 2020 book Weapon of Choice,155 Ian Ayres and Fredrick Vars suggest innovative proposals for firearms regulation, including a detailed proposal for privatized enforcement of the felon-in-possession laws.156 The book’s final chapters propose legislative initiatives to permit third party Unlawful Possession (UP) petitions—that is, to let individuals petition for gun removals from others whom they know are prohibited persons, such as felons.157

Historically, the fact that there is no way to know who possesses firearms illegally has been a major barrier to enforcement of the felon dispossession laws,158 unless police receive a tip or happen to be searching the person or their property pursuant to an investigation of or arrest for another crime. As a result, large numbers of prohibited persons currently have firearms.159 Ayres and Vars estimate that there are tens of millions of individuals who cannot possess guns legally, based on statistics about drug use and hospital admissions for mental health problems.160 They claim, plausibly, that hundreds of thousands of prohibited persons nationwide possess firearms despite the legal prohibition.161 Law enforcement officials often view illegal firearm possession by itself as a low-priority item for enforcement, but these same officials would give higher priority to a gun removal order issued by a court.162

Ayres and Vars propose increasing enforcement by harnessing the resource of private information.163 When prohibited persons unlawfully possess guns, a few of their acquaintances, roommates, relatives, and neighbors undoubtedly know about it. The legislation proposed would permit these adjacent individuals to submit petitions in court for the firearms’ removal and/or for the unlawful possessor’s arrest.164 Even without this proposed legislation, these same individuals could just tip off their local police department, but Ayres and Vars explain that currently, police departments often ignore such tips.165 Their proposed legislation, however, purports to solve this problem because the petition would come before an impartial judge, who would make an evidentiary determination as to whether the individual is, in fact, ineligible to have firearms, and has firearms nonetheless.166 After reviewing the petition and supporting evidence in an ex parte hearing, the court would then issue an order for firearm removal that the police could carry out.167 Ayres and Vars believe this would mitigate the massive underreporting by states and some federal agencies to the NICS databases.168

Ayres and Vars discuss the various means by which prohibited individuals end up having guns despite the legal prohibition.169 Unsurprisingly, many people who already owned guns legally become ineligible for gun ownership, due to a felony conviction or other reasons, but they retain the guns they already have.170 Some buy their firearms from licensed dealers, passing the background check because their name is not yet in the NICS database, as a result of chronic underreporting.171 Others, who are in the NICS database, bypass the background check system through private unlicensed sellers, such as acquaintances, internet sales, or the few unlicensed vendors who run booths at gun shows.172 Some receive guns as gifts or inheritances from friends or relatives, and still others acquire them through theft. Only three states—California, Connecticut, and Nevada—currently have statutes or regulations expressly mandating that individuals who become prohibited persons submit “proof of compliance to courts or law enforcement verifying that they relinquished their guns after conviction.”173 Ayres and Vars believe police could conduct such removals with a minimal risk of violent resistance.174

Importantly, Ayres and Vars buffer their proposed legislation with some large categorical exceptions. Their proposed statute would require courts to dismiss petitions in cases involving “nonviolent felons” and “violent” felons twenty years postconviction, which would be outside the legal purview of the unlawful possession petitions, and similar exemptions would apply to anyone whose ineligibility is due solely to being a marijuana user, an undocumented resident, or a citizenship renouncer.175 Yet Ayres and Vars never define “violent” versus “nonviolent” felonies. Even so, without defining the category, they assert that “nonviolent felons” and even “violent” felons who are at least two decades past their last conviction pose no elevated risk to the community, according to a few empirical studies.176 On the other hand, Ayres and Vars concede that simply including all the federal categories in the UP law they propose, without exceptions, would reduce the overall number of guns, and would therefore be likely to save lives;177 nevertheless, they feel that “political prudence” and “justice” weigh against this more straightforward approach.178

Acknowledging that gun possession laws have contributed to troubling racial disparities in arrests and incarceration, Ayres and Vars contend that their exceptions will help mitigate such inequalities.179 Their proposal emphasizes the safeguards inherent in having an impartial magistrate involved from the start; importantly, their proposal would entail punishments for anyone who submits a removal petition in bad faith.180 The threat of such penalties would help deter misuse or abuse of the system. Building on this proposal, Ayres and Vars then suggest incentivizing enforcement by paying cash rewards to those who file unlawful possession petitions that result in the removal of firearms from prohibited persons.181 Further, they suggest mandatory reporting requirements (with threat of fines and tort liability) for universities and private employers if they know of a student or employee who is (or ought to be) a prohibited person who threatens gun violence against others.182

Underreporting to NICS has certainly been a perennial problem. While Ayres and Vars propose increasing the existing carrots and sticks of federal funding to states based on their NICS reporting,183 efforts have been underway for the last fifteen years to increase reporting with more funding and duties for state and federal agencies.184 It would be a game-changing event to expand the scope of who can report to the NICS databases via partial privatization. In addition, private citizen petitions would make the NICS system more robust because they would flag individuals who are already in the NICS system but, unknown to law enforcement, possess firearms. This reporting can already occur through police tip lines, but court petitions would add layers of formality, create a public record, and provide some judicial due process protections for the accused.

One problem with their proposal is their exception for “nonviolent” or “nondangerous” felonies, a line of thinking that has gained some traction in the academic literature185 and among some conservative judges.186 Making this distinction would inevitably prove to be as indeterminate and unworkable as “crime of violence” has been for years in the sentencing context, under 18 U.S.C. § 924(c), the federal sentencing guidelines, and the ACCA, codified in relevant part at 18 U.S.C. § 924(e). This problem is the subject of the following Part.

III.     The Unworkable Distinction Between “Violent” and “Nonviolent” Crimes, or “Dangerous” and “Nondangerous” Felons

The counterproposal offered by recent commentators and jurists to the current regime would have the felon-in-possession ban apply only to those convicted of nondangerous or nonviolent felonies.187 This limitation on the ban could come in the form of a judicial rule for as-applied constitutional challenges to § 922(g)(1), or through legislation, such as an amendment to the relevant federal and state statutes. Limiting the felon-in-possession statute to those convicted of “crimes of violence” poses numerous problems for the judiciary, for law enforcement, for public safety, and even for the felons who would be subject to the statute.

An exception for “nonviolent” felonies would prove as indeterminate and unworkable as “crime of violence” distinctions have been in the sentencing context of the ACCA, the sentence-enhancement provisions of 18 U.S.C. § 924(c), and the federal sentencing guidelines.188 Deciding in each individual case whether a specific conviction was for a crime of violence has become extremely labor intensive for the judiciary, fraught with uncertainty and inconsistency. Academic commentators have lamented the inconsistency189 or indeterminacy of this approach (noting discrepancies in whether state manslaughter charges constitute “violent” crimes),190 as well as its unfairness191 and inappropriateness (at least for nonjury determinations).192 Forcing a limit on felon-in-possession laws based on dangerousness or “violent felonies” would merely import these same burdens and conundrums into our most frequently enforced firearms law.193

A.  The Unworkability of Categorizing “Crimes of Violence” in the ACCA and Sentencing Context

The federal felon-in-possession law has been in effect since before most Americans were born.194 This is a well-known, bright-line rule. More recently, Congress imposed additional penalties on those who use a firearm while committing a violent felony or a drug trafficking crime.195 In addition, felons with three prior crimes of violence are subject to stiffer sentences under the ACCA.196 Unlike the bright-line felon-in-possession rule, however, § 924(c) and (e) require intensive case-by-case, statute-by-statute analysis to determine if the predicate crimes qualify as “crimes of violence.”

A recent decision by the Eleventh Circuit illustrates the problem.197 In United States v. Simmons, the court explained that federal kidnapping did not qualify as a “crime of violence” under 18 U.S.C. § 924(c)(1)(A)(ii), which prohibits brandishing a firearm in furtherance of a “crime of violence.”198 On the other hand, the appellants’ convictions for Hobbs Act robbery could be used as predicate offenses for the defendant’s conviction of brandishing a firearm in relation to a crime of violence under the same statutory provision, § 924(c)(1)(A)(ii).199 Then again, Hobbs Act robbery did not qualify as a “crime of violence” under the career-offender sentencing guideline, U.S.S.G. Section 4B1.2(a).200 The appellants in this consolidated appeal had robbed four jewelry stores at gunpoint in Florida and Georgia, and all of those charges arose from the same crimes.201 Suppose, then, that courts adopted a rule for Second Amendment as-applied challenges to the felon-in-possession statute that distinguished between convictions for “violent” and “nonviolent” crimes. Would an individual with a federal kidnapping conviction (and a string of armed robberies) count as “violent,” if their crime is not a “crime of violence” under the federal law that specifically addresses using firearms in crimes of violence?202 Should a conviction for robbery under the Hobbs Act203 count as a “crime of violence” for Second Amendment purposes, if the crime constitutes a “crime of violence” for purposes of the elements clause in § 924(c)(3)(A),204 but not as a “crime of violence” under the federal sentencing guidelines for career offenders?205

Because § 924(c) and (e) punish firearm possession in relation to the commission of a crime of violence or as a habitual offender penalty after three crimes of violence, courts interpreting these sections use a “categorical approach” or, in some cases, a “modified categorical approach” to determine whether the predicate crimes qualify as “crimes of violence.”206 Courts first examine the statute of conviction in the relevant jurisdiction for the predicate offense. If the statute in question is not “divisible” (which is a separate judicial determination), courts then apply the categorical approach to determine whether the crime fits within the “generic” elements of burglary, arson, or extortion, or if the crime in question has as an element “the use, attempted use, or threatened use of physical force against the person or property of another.”207 If the statute criminalizes a range of actions broader than generic burglary, arson, or extortion, and it lacks an element of physical force, it does not qualify as a “crime of violence” under the ACCA or § 924(c). Courts do not look to the underlying facts of the crime; this determination is based solely on the elements of the offense.208

If the underlying statute of conviction is divisible, meaning the statute sets forth alternative ways of committing the crime, a court may conduct a limited examination of the charging documents along with the statute to determine which section of the statute furnished the basis for that conviction, and then conduct the element-comparison test in the categorical approach. Even so, the court does not rely on the underlying facts of the individual’s actual crime under either method. This is a complex and labor-intensive analysis requiring a judicial examination of the elements of statutes, state by state, to make individual determinations of whether the specific charging statute in the relevant jurisdiction qualifies as a crime of violence.209

During the Supreme Court’s October 2018 oral arguments in Stokeling v. United States, Justice Alito lamented, “[W]e have made one royal mess,” with respect to the interpretation of the ACCA.210 The Justices expressed frustrated disagreement about the degree of “force” necessary to constitute “violence” under the ACCA, discussing pinching or pulling a dollar bill out of someone’s hands when they are grasping it tightly.211 As the Court moved on in the same oral argument to United States v. Stitt and United States v. Sims, Justice Gorsuch declared, “If you survey circuit judges across the country, one gripe they have with this Court’s jurisprudence . . . may be the ACCA.”212 The Justices agree that neither the statute that distinguishes violent crimes, nor their own evolving approaches to the same distinction, have worked well. Introducing this same distinction into Second Amendment jurisprudence would prove just as problematic.

Consider the following example: Clay O’Brien Mann, while in a drunken rage, shot three people, killing one of them.213 He had visited a rural lot owned by his wife to drink alcohol and set off fireworks. The adjacent landowners were having a small bonfire party as a charity fundraiser event.214 Around 2:30 A.M., Mann drunkenly threw an artillery shell firework at the bonfire from his property line.215 The explosion sent the guests running and screaming.216 He then used his rifle to shoot two men and a woman who ran toward him from the explosion.217 At trial, the jury convicted him of one count of involuntary manslaughter and two counts of assault resulting in serious bodily injury.218 Did Mann commit a “crime of violence”? Not for purposes of § 924(c)(3); the district court held: “Involuntary manslaughter is not a crime of violence.”219 It would count as a “crime of violence” for some other subsections of § 924, and for certain other firearms statutes about misdemeanors for domestic violence, but the shootings would not constitute a “crime of violence” under the charged statute, the sentencing guidelines, or 18 U.S.C. § 113(a)(6) (statute covering assault causing serious bodily injury on a reservation, relevant in this case).220

Or consider Jose Antonio Martinez, indicted for conspiracy to commit murder for the purpose of maintaining and advancing his position in a racketeering enterprise.221 It is an unsettled question of law whether a murder-related charge as only one of the two predicate acts supporting a RICO conviction should allow the RICO conviction to constitute a “crime of violence” under § 924(c). As the Second Circuit explained:

It might surprise a reader unfamiliar with the history of the Supreme Court’s interpretation of this statute to learn that there is any question as to whether participating in the affairs of a street gang dedicated to committing violent crimes through a pattern of criminal acts that included the murder of a person who was standing innocently on the street constitutes a “crime of violence” under either of these definitions, or for that matter under any common-sense understanding of the term “crime of violence.” But two strands of the Supreme Court’s case law regarding the statute combine to give Martinez a plausible argument that it does not.222

Another example is former cartel boss Juan Garcia Abrego, who “was the hub of a narcotics smuggling syndicate of staggering dimension” for approximately two decades.223 Throughout the 1970s and 1980s, his cartel smuggled massive quantities of cocaine and marijuana from Mexico into the United States,224 provided “protection” to (extorted) other Latin American drug cartels,225 ordered the murders of rivals and disloyal employees,226 and bribed Mexican government officials.227 Mexican authorities eventually apprehended Garcia Abrego and extradited him to the United States.228 A jury convicted him of money laundering, conspiracy to launder money, possession with intent to distribute cocaine, and conducting a continuing criminal enterprise; he received concurrent life sentences.229 None of these convictions would count legally as a “crime of violence” under the Supreme Court’s categorical approach for that phrase under various sections of § 924.230

In 2006, Reynaldo Roblero-Ramirez killed someone in a fight and pled guilty in a Nebraska state court to “sudden quarrel manslaughter.”231 When Roblero-Ramirez faced charges for other crimes years later, the state manslaughter statute did not constitute a “crime of violence” under the categorical approach and federal sentencing guidelines because the statute encompassed both intentional and negligent manslaughter.232 Assuming the same approach applied for Second Amendment challenges to felon disarmament, Roblero-Ramirez would be a nonviolent or nondangerous felon and, therefore, entitled to have any number of firearms.233 Only statutes with the same scienter requirement as the federal manslaughter statute—recklessness or intentionality—count as “crimes of violence,” even for those who kill someone during a fight.234 On the other hand, the same court considers a conviction under the federal manslaughter statute to be a “crime of violence.”235 As the Seventh Circuit has said, “[N]ot all involuntary manslaughter convictions are necessarily crimes of violence.”236

In a recent Seventh Circuit case, Guenther v. Marske,237 the defendant in a felon‑in‑possession case had “two convictions for first-degree burglary (in 1990 and 1992), one for second-degree burglary (in 1986), and one for kidnapping (in 1990), all under Minnesota law.”238 While these felony convictions currently count as firearm disqualifiers under § 922(g)(1), the court had to review his sentencing enhancement under the ACCA.239 Applying Minnesota law and interpretations from the relevant sister circuit (Eighth Circuit), the court concluded that none of these convictions counted as “violent felonies” under the ACCA.240 If his gun possession conviction also depended on whether the prior convictions were for “violent felonies,” would his convictions for two burglaries and kidnapping qualify, even though they do not qualify under the Supreme Court’s rubric for the ACCA? 241

If the “crime of violence” qualifier applied to the felon‑in‑possession statute, courts would have to engage in the laborious process of determining, after the fact, that the statute of conviction required the element of the use, attempted use, or threatened use of physical force or had the narrow elements to fit generic burglary, arson, or extortion. If, as with the other sections that require a crime of violence, courts followed the categorical or modified categorical approach, they would not look to the facts of the crime committed but to the statute of conviction. Many felons who use violence in their crimes and are convicted of a broader felony could be eligible to possess a firearm. Oftentimes, the prosecution cannot prove cases for violent crimes like murder ordered by cartel bosses; instead, the government pursues charges of other nonviolent crimes to get these dangerous individuals off the streets. We should not assume that these individuals are not violent, and therefore that they are entitled to own firearms, just because the ultimate crime of conviction does not involve physical force.

Further, the proposed alternate regime would encumber the background check system built upon the NICS database by requiring an ex ante determination regarding whether a particular person is a violent felon in order to add them to the database. This type of screening of new entries would require the administrative personnel involved to anticipate the convoluted categorical/hybrid‑categorical approach courts would undertake, often reaching inconsistent and counterintuitive outcomes. In turn, this would generate a host of litigation over whether each crime of conviction is a “crime of violence.” As the First Circuit observed in considering a proposed as‑applied Second Amendment challenge to the felon‑in‑possession law, allowing “such an approach, applied to countless variations in individual circumstances, would obviously present serious problems of administration, consistency and fair warning.”242

Adding a “crime of violence” qualifier would also harm both the law‑abiding public and felons who are unsure of their status. For the law‑abiding public, the qualifier would allow many individuals previously barred from gun ownership to have one, regardless of the actual facts of their crimes.243

In other words, distinguishing between “dangerous” and “nondangerous” felons is not as easy as we might imagine; in the current federal ACCA and sentencing context, this requires complex statutory interpretation rather than a review of the facts of the crime committed or the felon’s present dangerousness. This categorical approach, in turn, has forced lower courts to parse numerous state statutes, reaching the inconsistent and counterintuitive results delineated in the commentary above. In the end, distinguishing “violent” and “dangerous” felonies from nonviolent and nondangerous ones will require a one‑or‑the‑other approach—either a categorical‑statutory approach or an extensive factual inquiry into the felon’s original crime and/or present “dangerousness,” which is discussed in the next Section. Neither of these approaches has worked well in answering this same question in other areas of criminal law.

Of course, one might anticipate the objection that Congress could at least list all the federal statutes it considers “violent” or “dangerous” enough to disqualify someone permanently from having guns and then prohibit the counterpart crimes at the state level. A statute listing which felonies disqualified felons from having firearms and which did not could preempt such determinations by courts and administrative officials.

There are several problems with this argument. First, suppose Congress included something like “racketeering,” “espionage,” “carjacking,” or even “extortion.”244 Individuals with convictions under these statutes would still bring as‑applied challenges, arguing that their commission of extortion involved only threats of publicly disclosing incriminating or embarrassing information, that their racketeering or espionage all occurred via the internet and involved no violence or even threats of violence, or that their carjacking involved hacking remotely into a car’s onboard computer and taking over its controls to take possession of it. In other words, delineating certain crimes as “violent” or “dangerous” by statute would not solve the problem because it would still be just as susceptible to as‑applied Second Amendment challenges as the current all‑inclusive version of § 922(g)(1). Besides basing challenges on the nonviolent nature of their own offense, individuals would also challenge entire categorizations, arguing that drug distribution is not inherently or necessarily violent, that burglary does not necessarily involve violence or threats of violence, and so forth. State criminal statutes vary by jurisdiction in their verbiage and elements, so there would be endless challenges to whether the federal ban applied to a given state felony; it is currently unclear whether “kidnapping” and “manslaughter” qualify as crimes of violence for purposes of the ACCA and the sentencing guidelines, so it is plausible that the same would not apply if Congress added a list of crime types to § 922(g)(1).

Moreover, Congress already delineated such a determination in the 1968 Gun Control Act, answering the question with “a crime punishable by imprisonment for a term exceeding one year.”245 In fact, decades before the 1968 Gun Control Act, Congress adopted a delineated list of crimes of violence for other federal gun laws, which defined a “crime of violence” as “[m]urder, manslaughter, rape, mayhem, maliciously disfiguring another, abduction, kidnaping, burglary, housebreaking, larceny, any assault with intent to kill, commit rape, or robbery, assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment in the penitentiary” or “an attempt to commit any of the same.”246 Congress deliberately removed the “crime of violence” limitation in 1961,247 presumably because it was underinclusive. Thus, in effect, those currently advocating in favor of as-applied constitutional challenges want the judiciary to apply the pre-1961 statutes instead of the statute as it now reads.

B.  Individualized, Fact-Based Determinations of Dangerousness

The only alternative to a statutory-interpretation or “categorical” approach for distinguishing between “dangerous” and “nondangerous” felons would be to undertake an individualized, fact-based determination of the person’s past and present dangerousness. Congress tried, and abandoned, this approach already—not for whether the felon-in-possession law would apply initially, but as a way for felons to petition to have their gun rights restored. Codified at 18 U.S.C. § 925(c), there was a provision for administrative exceptions to legal “firearm disability”—the Attorney General could

grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.248

This statute is now inoperable for individual felons, due to express defunding (or more precisely, disappropriation249) by Congress twenty-three years later through a targeted appropriations rider that states, “[N]one of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. [§ ]925(c).”250 The Supreme Court has acknowledged this appropriation bar approvingly,251 and noted that Congress had renewed the ban every year.252 Reviewing these administrative exception petitions had turned out to be “a very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.”253 House reports from the era state that “too many of these felons whose gun ownership rights were restored went on to commit violent crimes with firearms.”254

This funding bar remains in place. The legislative history of this decision reveals that Congress believed the program was far too labor intensive for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),255 and too many mistakes occurred in granting the applications. Processing the applications involved interviewing witnesses, verifying extensive documentation submitted with the application, and so on—a thorough investigation of the individual’s recent activities and compliance with the law. The House reports claimed that many felons who regained gun rights committed more violent crimes and noted that the government should not waste taxpayer resources on giving convicted criminals access to firearms.256

There is some debate among commentators about Congress’s original motive in enacting § 925(c), with some claiming it was initially for corporations, not individuals, and specifically one corporation, the Olin Mathieson Corporation.257 Olin Mathieson was found guilty of felony kickback charges related to pharmaceutical exports.258 The problem was that this large conglomerate owned the Winchester firearms company as a subsidiary, so its firearm disqualification would have prevented Winchester from selling guns—ensuring its bankruptcy.259 On this theory, the provision for certain felons to petition to have their gun rights restored was for Olin Mathieson; the judge in this case “stayed judgment of conviction to give the firm an opportunity to seek legislative change. After a few visits and donations, [Senator] Dodd sponsored the amendment which allowed the firm to obtain a ‘relief from the disabilities.’”260 One commentator has argued to the contrary: based on quotes from the legislative history committee reports, it is possible that Congress truly intended the provision primarily to benefit individuals who no longer posed a threat to the community.261 The text of § 925(c) itself begins with “a person,” supporting the idea that the original intent was to help individuals. On the other hand, the appropriations bar currently contains a second clause that provides, “[S]uch funds shall be available to investigate and act upon applications filed by corporations for relief from Federal firearms disabilities under [§]925(c) of title 18, United States Code.”262 This clause arguably supports the idea that Congress’s primary concern was saving corporations (gun manufacturers and their parent corporations), because the appropriations ban does not apply in that rare case—ATF could still process petitions from a company like Olin Mathieson.

If Congress did intend this program primarily to help corporations, things quickly went in a different direction.263 Throughout the 1970s and 1980s, ATF received and processed tens of thousands of such petitions, many from violent felons.264 “In the 10-year period from 1982 until 1992, the Bureau of Alcohol, Tobacco and Firearms processed more than 22,000 applications. Between 1985 and 1990 ATF granted ‘relief’ in approximately one third of those cases.”265 Processing the petitions involved a labor-intensive inquiry, and by the late 1980s, ATF invested forty man-years of labor annually solely to these petitions.266 This was an expensive program, a burden on the public fisc.267 By 1992, the mood in Congress was unfavorable to the program,268 so it adopted an express repeal-by-disapportionment in the budget, and subsequent Congresses have included it every year since. The National Rifle Association has lobbied repeatedly over the years to have the apportionment ban lifted.269

Moreover, some serious mistakes occurred, with tragic consequences—many felons who had gun rights restored then proceeded to commit horrific violent crimes.270 Some of the ATF’s decisions to grant restoration of gun rights were dubious, as the Violence Policy Center report explained:

The crimes committed by those individuals granted “relief” were not limited to non-violent, “white collar” crimes like those committed by Olin. Through the Freedom of Information Act (FOIA) the Violence Policy Center obtained 100 randomly selected files of felons granted “relief.” Among those 100 cases were: five convictions for felony sexual assault; 11 burglary convictions; 13 convictions for distribution of narcotics; and, four homicide convictions. In fact, of the 100 sample cases, one third involved either violent crimes (16 percent) or drug-related crimes (17 percent).271

This influential study by the Violence Policy Center, published in 1992 before Congress debated the issue, included 100 case studies of individuals who had obtained “relief” from the firearm prohibition.272 The report recounted numerous crimes and arrests among beneficiaries of the program, including many whose previous convictions had been for nonviolent crimes.273

After Congress defunded the program, felons continued to file petitions, which ATF would return explaining that the agency could not process them. Section 925 authorized judicial review whenever ATF denied any of these petitions, so when ATF returned the petitions, some of the felons sought relief in court, asking the courts to restore their firearm rights instead. One of these cases, United States v. Bean,274 went up on appeal to the Supreme Court, and the Court said that there was no final agency action.275 “Inaction by ATF does not amount to a ‘denial’ within the meaning of § 925(c),”276 Justice Thomas wrote for a unanimous Court.277

In a passage that is relevant for the modern as-applied Second Amendment challenges to the felon-in-possession statute, the Court added:

Whether an applicant is “likely to act in a manner dangerous to public safety” presupposes an inquiry into that applicant’s background—a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the “public interest” standard calls for an inherently policy-based decision best left in the hands of an agency.278

This type of inquiry, however, is exactly what these as-applied challenges would purport to do, restoring gun rights to felons that a court determines are not truly dangerous.279 The petition process in § 925(c) was admittedly an ex post administrative remedy for undoing the firearm deprivation of those who did not pose a discernible danger to others, whereas some proposals for amending the statute contemplate an ex ante legislative determination of dangerousness. The proposals by commentators and some judges for distinguishing dangerous/nondangerous felons for purposes of Second Amendment challenges (i.e., as-applied challenges) appear to have both ex post and ex ante features. On the ex post side, the cases arise after conviction (as an appeal seeking reversal) or after an adverse administrative action, like the denial of a firearm dealer’s license in Folajtar.280 Presumably, trial courts would eventually embrace these challenges in an ex ante motion for dismissal or an injunction to a government agency. These proposals for making the violent/nonviolent distinction in Second Amendment adjudication—both in the academic literature and in appellate court opinions—are under-theorized on how they would work in practice.

Writing a partial concurrence in Binderup, Judge Fuentes recounted the history of defunding § 925(c) petitions, and concluded, “Congress reviewed the evidence from its prior regime of what were, in effect, as-applied challenges to § 922(g)(1) and concluded that such a system was unworkable.”281 In the more recent Third Circuit consideration of an as-applied challenge to the same statute, the majority quotes this section of Judge Fuentes’s concurrence in its opinion, seemingly endorsing it in a footnote.282 Other circuits have also discussed § 925(c) petitions for relief from firearm disability, upholding the constitutionality of the felon-in-possession statute.283

Judge Barrett’s dissent in Kanter v. Barr284 focused so much on the present dangerousness (or lack thereof) of the individual felon that it gives the impression she envisions a hybrid approach—a categorical ban for those convicted of “violent” felonies, and for nonviolent felons, a factual investigation like that conducted by the ATF for petitions prior to 1992, except in cases where the conviction was for a “violent” crime. This would mean an intensive look at the individual petitioner and a judicial assessment of whether the person, on balance, presents any special danger to the community, though Judge Barrett mostly referenced superficial checks like recent arrests or convictions.285 Judge Barrett’s dissent mentions a few felonies she thinks are obviously violent—”murder, assault, and rape”286—and then discusses an example where the conviction was for robbery and the felon “was in no position to challenge” the application of the felon firearm ban.287 She did not explain what rubric courts should use to determine whether a felony is violent or nonviolent—for example, whether the statute would have to include an element of violence or force, as with the ACCA categorical rule, or if the felon prohibitor could apply to the many felons who used violence or violent threats in committing their crimes, but who pleaded to a nonviolent felony charge to secure a shorter sentence. The last two pages of her dissent describe a bizarre proposal whereby the government could present evidence (meet a burden of proof) that a nonviolent felon was indeed dangerous or likely to commit violent crimes and could then permanently deprive the person of firearm rights.288 There is no federal law that permits some government officials (prosecutors? FBI?) to compile evidence that someone is a high-risk candidate for committing violent crimes (which, again, she does not define or suggest how to define) and, before any additional offenses occur that would warrant an arrest or conviction, may permanently deprive the individual (whether a felon or not) of firearms. If a felon like Mr. Kanter had a conviction for a “nonviolent” crime like mail fraud, they would simply be eligible to have their guns under her proposed analysis, and there would be no case before the courts regarding unlawful possession of weapons by the individual. She closes by saying, “This does not mean that Wisconsin and the United States cannot disarm Kanter.”289 She continues, “Even though the mail-fraud conviction, standing alone, is not enough, they might still be able to show that Kanter’s history or characteristics make him likely to misuse firearms.”290 But there is no legal mechanism to do that, apart from state extreme-risk protection orders for those with mental impairments or who make actual threats. In effect, her position meant that neither the state nor the federal government could disarm Mr. Kanter, regardless of his history and characteristics.

In practice, there are only two ways to distinguish between “dangerous” and “nondangerous” or “violent” and “nonviolent” felons—either by categorizing statutes, discussed above, or by an individualized factual assessment of each felon’s character. The latter would either have to be an ex ante determination at the time of sentencing, or a post-release petition for relief from firearms disability (restoration of gun rights), such as that described in the now-moribund § 925(c). There is no existing statutory framework that gives courts discretion to impose permanent firearms disability ex ante, at the time of sentencing, on individual felons the judge deems dangerous. Even if there were, the question would remain of how subjective this determination could be—would a judge be free to make such determinations on the “totality of the circumstances,” referencing some supporting evidence in the record? Or would prosecutors have to prove each allegation supporting a “dangerousness” finding beyond a reasonable doubt? Defendants would appeal these judgments, arguing that a more conservative or pro-gun judge would not have imposed firearms disability.

C.  The New Rehaif Problem with Distinguishing Felony Types

Currently, convicted felons know that they have a felony conviction and are presumptively aware that the firearm ban for felons applies to them, with rare exceptions.291 Given the foregoing discussion, however, if the courts adopted a “violent/nonviolent” distinction for Second Amendment analysis, it would be very difficult for an individual to know ex ante—say, at the time of purchasing or borrowing a firearm from an acquaintance—whether their felony counts as “violent.” Given the Supreme Court’s ever-evolving jurisprudence with the ACCA, § 924(c), and the sentencing guidelines, the answer to that question could also change overnight.

In other words, the proposed “dangerousness” would open the floodgates of Rehaif-based claims and undo the clarification the Court provided recently in Greer. Greer presumed that “individuals who are convicted felons ordinarily know that they are convicted felons,”292 but many felons would not know whether their conviction satisfies the definition of “dangerousness” that would disqualify them from gun possession under the statute, if indeed courts were to impose such a qualifier via as-applied constitutional rulings. This same legal question in the ACCA context requires extensive research and briefing by lawyers and judges and would lie beyond the competency of nonlawyer defendants. In practice, most defendants in felon-prohibitor cases could plausibly assert that they were confused about whether their felony disqualified them from firearm possession, and the burden would be on the prosecutor in every case to show that this defendant had actual knowledge that their conviction qualified. Some judges might include this in sentencing—informing the defendant that their conviction disqualifies them from gun possession under § 922(g)(1)—but even then, one can imagine Rehaif challenges where the defendant acknowledges the judge warned that the felon prohibitor would apply, but the court hearing the challenge disagrees with the sentencing judge on that point, and therefore decides after the fact that § 922(g)(1) does not apply.

Due process requires notice and an opportunity for hearing. Currently, the bright-line felon-in-possession rule places all felons on notice that it would be unlawful for them to purchase or possess a gun under federal law. There is no similar mechanism in place for individualized prohibitions and tailored notices for violent felons. There is no standardization of the “crime of violence” felon status in this country, and even federal application of the “crime of violence” standard requires an examination of individual statutes from all over the country and across all jurisdictions. Many felons would not know about their “crime of violence” status (thus activating a firearm disability) or would simply misunderstand it. Placing the qualifier of “violent felony” raises significant due process issues even if the defendants are told under the convicting jurisdiction’s understanding of the law that they do not have a “crime of violence” tag on their record because the case-by-case (or rather statute-by-statute) in-depth analysis required to determine whether a particular crime is a crime of violence is, many times, an ex post judicial determination and not an ex ante one.

The current bright-line felon-in-possession rule, in contrast, places each felon on notice that they may not possess a firearm. It allows law enforcement to make a quick and accurate determination as to whether the arrestee is a felon-in-possession at the time of the arrest. It protects the public because it includes dangerous felons who commit violent acts but are finally convicted of nonviolent felonies like tax fraud. Finally, it eliminates the uncertainty by having a standard that is easy to understand and easy to enforce.293

Gun sellers would have the same problem, especially private sellers who cannot conduct a NICS background check themselves for a prospective purchaser. It would become impossible to enforce the laws prohibiting private sellers from knowingly selling firearms to prohibited persons if the law applied only when the buyer’s felony conviction counted as a “violent” felony, because there would be no way for sellers to ascertain that. Imagine a private seller who supplies guns to any of the defendants described in the examples above, knowing full well that the buyers have committed (or are committing) armed robberies, kidnappings, money laundering for drug cartels, etc. Even with this knowledge, it would not be possible to show that they knew that an individual buyer’s robberies, kidnappings, or racketeering did, in fact, count as “violent” under the law.

This problem would also apply to straw purchasers who buy guns on behalf of active criminals. They could purchase guns from licensed dealers and pass the background check (by buying on behalf of someone who fears he would not pass it), but the straw purchaser could always plausibly claim, if caught, that they could not have known whether the person on whose behalf they bought the guns would qualify as a “violent” felon. Prosecutors must prove some amount of knowledge as an element of straw purchaser charges, but the predicate fact, in practice, would typically be unknowable.

D.  Law Enforcement

Besides the problem of judicial economy, the proposed alternative regime would require police officers to ascertain, during a lawful search, an arrest, or in a warrant application, whether an individual’s felony conviction would satisfy an unclear judicial standard for “dangerousness.” This scenario would pose an insurmountable problem for law enforcement. Police already make some good-faith errors in the context of enforcing the felon-prohibitor rule by mistaking serious misdemeanor convictions for felony convictions,294 and this new proposed inquiry would, in practice, stymie any enforcement of the statute.

Those proposing that the Second Amendment requires a distinction between violent/dangerous felons and nonviolent felons seem to assume that this classification of convictions will be immediately obvious to law enforcement officers when they are checking a suspect’s record to prepare an application for a search or arrest warrant, or (even more infeasibly) during a roadside traffic stop to decide whether to detain an individual. Should police use the categorical approach, or an underlying-facts approach? Police do not have immediate access to all the underlying facts behind an individual’s recorded convictions or arrests, so there would be no way for an officer to know if an individual had used violence or threats, even though the arrests or conviction was for a crime like obstruction of justice, possession of contraband, or some type of fraud. If police had to use the categorical approach, they would have to undertake the same type of confusing inquiry that judges now use for sentencing, analyzing (say, in their police cruiser during a roadside traffic stop) the elements of each predicate statute, whether state or federal, and for each recorded conviction, with reference to controlling judicial precedent in their state about whether “robbery” or “kidnapping” counts as a “crime of violence.” This is simply not possible—police could not do it, and the felon-in-possession laws would become completely unenforceable, even for the most violent of felons. In sum, the law codified at § 922(g)(1) would quickly become inoperable, fall into desuetude, and the “dangerousness” proposal could eventually eliminate the rule.

E.  Lessons Learned from the Existing Statutory Exemptions for Certain Felonies

As mentioned in Part II, certain felonies are statutorily exempt from the felon-in-possession laws. Congress has already spoken about which felonies it considers nonserious enough to exclude from the firearm disqualification, and Congress could easily have exempted many others—but it chose not to. As the common law canon would counsel, expressio unius est exclusio alterius, which “instructs that, where a statute designates a form of conduct, the manner of its performance and operation, and the persons and things to which it refers, courts should infer that all omissions were intentional exclusions.”295 Section 921(a)(20) provides:

The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.296

Of course, it is not always clear what counts as “antitrust violations,” “unfair trade practices,” or “restraints of trade.”297 Even more litigation arises about the expressly ejusdem generis residual clause, “or other similar offenses relating to the regulation of business practices.”298 The few cases that have arisen under § 921(a)(20)(A) have already generated a circuit split with three different approaches being used to interpret and apply the provision.299 Some federal circuits, unsurprisingly, adopted an “elements” approach very similar to the “categorical” approach used by federal courts for ACCA cases and § 924(c) cases, described above, with similar untoward results.300 Others circuits use a “purpose”-matching approach between the delineated statutes and statutes that could potentially fall under the residual clause, and still others combine both of these approaches into a two-step “holistic approach.”301

In other words, even if Congress tried legislatively to exempt more “nonviolent” or “nondangerous” felonies from the firearms ban, unless the statute identified felonies by code section number, results would vary depending on the circuit and the methodology used, and each of the approaches would produce some manifestly unfair or counterintuitive results. Felons convicted of violations that could fall under the exemptions would have uncertainty about their legal status, creating both a Rehaif-type mens rea problem and a fundamental fairness or due process problem for these individuals. Similarly, sellers and proxy purchasers (whether criminal straw purchasers, purchasing agents, or those thinking they were buying someone a firearm as a gift) would also have to operate under an unacceptable degree of uncertainty about the prohibited status of potential purchasers.

This history here is worth recounting, albeit briefly. Originally, the statute read, “or other similar offenses relating to the regulation of business practices as the Secretary [of the Treasury] may by regulation designate.”302 Eighteen years passed, and multiple Treasury Secretaries, and none made any such designations. Then, as part of the 1986 Firearms Owners’ Protection Act,303 Congress dropped the phrase that delegated additional designations to the Treasury Secretary. The legislative history suggests that Congress intended to make “the court, rather than the Secretary, the final arbiter as to what constitutes a ‘similar offense relating to the regulation of business practices.’”304 Although there is no consensus among the courts about what approach to use in deciding which unspecified felonies should come under the exemption, the results are usually not favorable to the defendant regardless of the approach used. One notable exception is the District Court for the District of Columbia, in its 2018 decision in Reyes v. Sessions,305 which held that the exemption applied to felony convictions for securities fraud, falsifying corporate books and records, and making false statements to accountants.306 In contrast, the Eighth Circuit has held that selling tainted meat in violation of federal law did not come under the residual clause exemption,307 and in another case, that a scheme to defraud also did not.308 The Seventh Circuit concluded that trafficking in counterfeit telecommunications instruments was not exempt.309 The Fifth Circuit did not apply the exemption to pirating encrypted satellite signals and to infringe a copyright,310 or to mail fraud and conspiracy to commit mail fraud.311 Regardless of the approach used in construing the phrase “or other similar offenses,” courts usually do not find that the exemption applies to the individual defendant, even for convictions for felonies like mail fraud or digital piracy.

Several published student notes or comments have discussed this statutory section and used it to contend that the felon-in-possession laws are fundamentally unfair and arbitrary.312 One student commenter has suggested that an amendment expanding the list of exempt felonies would reduce the unfairness or severity of the gun ban for most felons,313 which is unlikely given the political gridlock surrounding gun policy in Congress. Expanding the list legislatively would certainly be better than doing it through a series of hodgepodge judicial responses to as-applied challenges under the Second Amendment. Even so, expanding the list would pose some practical problems for judicial interpretation. There would be some uncertainty about what constitutes each of those crimes (say, counterfeiting), just as there is some debate about what should be classified as an “unfair trade practice.”314 Moreover, each new item on the delineated list opens the door for a new set of arguments by analogy (“my cryptocurrency felony is analogous to counterfeiting regular printed currency, so the firearm disqualification should not apply to me”), as well as more arguments by comparison (“if ___ felony is exempt, then certainly my felony should be as well, for it is even less dangerous or violent”).

If a court truly felt compelled to grant relief from the firearm disqualification to some unusually deserving felon, this outcome is more readily achievable under this statute, even in its current form, than by approving a constitutional as-applied challenge. A court considering such a challenge could invoke the avoidance canon to justify interpreting the residual clause of § 921(a)(20)(A) broadly enough to cover the special-case defendant. The avoidance canon counsels courts to “avoid the question about an act’s constitutionality in the first place, if possible,”315 by favoring an interpretation of the statutory terms that skirts the constitutional issues. “Courts even have found that a ‘strained construction’ is desirable if it is the only construction that will save an act’s constitutionality . . . .”316 Avoidance via a more elastic interpretation would eliminate the need to decide as-applied cases on constitutional grounds, as the Supreme Court did to avoid First Amendment issues in NLRB v. Catholic Bishop of Chicago.317

Though other traditional canons of construction have fallen out of favor with the modern judiciary, the avoidance canon remains popular among judges, especially those on the federal bench.318 Some recent commentators have even criticized the Supreme Court for relying too often on the avoidance canon in major cases affecting public policy.319 If it were truly necessary to restore gun rights to certain special-case reformed felons, rather than creating disruptive new constitutional precedent (under the Second Amendment), or delving into a daunting factual determination of the individual’s “dangerousness,” a court could employ the avoidance canon and simply interpret the § 921(a)(20)(A) exemption definition broadly enough to include the activities that generated the conviction. This should be in rare cases, though, because Congress did in fact delineate very few felonies as exempt from the firearms ban, so it would be inappropriate to use the statute to shoehorn broad categories of additional felonies into the exception.

IV.  Underappreciated Benefits of the Felon-in-Possession Law

A.  Vulnerable Communities

The felon-prohibitor rule helps reduce the flow of guns into vulnerable communities—impoverished neighborhoods with elevated rates of gun violence. Our nation’s gun violence concentrates disproportionately in urban areas.320 While individual felons themselves may not pose a danger or engage in gun crimes, any guns they own become more easily accessible to neighborhood thieves, borrowing by roommates and nearby relatives, informal trades, and or misplacement.321 Social science research about gun violence has found that most guns used in crime are borrowed/shared (sometimes stolen),322 which means geographic proximity of the guns increases the incidents of gun violence in the neighborhood.323 The supply of guns flowing into vulnerable communities can impact rates of gun violence, even if the guns are brought there initially by owners who do not perpetrate the crimes.324

Disproportionately, released felons return to these vulnerable communities.325 “Racial minorities are disproportionately represented in the ex-felon population and based on lower socio-economic status disproportionately live in poor and high-crime neighborhoods . . . .”326 Other writers have also noted that released felons tend to concentrate in poor, marginalized communities, so that the greatest impact of the felon prohibitor—both the good and the bad—falls there.327 The concentration of felons in vulnerable communities has received academic attention in other respects, such as the problem with felons being disqualified for most federal welfare or social safety net programs, which in turn means their communities are disproportionately cut off from such aid.328 Similar observations about the concentration of felons in poor, minority neighborhoods are prevalent in the literature about the loss of voting rights.329 Not only are poor neighborhoods and communities more vulnerable to violent crimes, but also the anemic response of law enforcement to reports of violence in these locales exacerbates the problem; as William Stuntz observed years ago, “Violent felonies are underenforced in poor neighborhoods; drug crimes in those same neighborhoods are punished too harshly.”330

This is not to say that felons themselves never pose a risk. As the Third Circuit observed in the Folajtar decision,331 nonviolent felons are statistically almost as likely as those with violent felony convictions to commit subsequent violent felonies: “And there is good reason not to trust felons, even nonviolent ones, with firearms. . . . [N]onviolent offenders are at higher propensity for committing violent crimes.”332 The court cited statistics showing that those with convictions of fraud or forgery were a little less likely to commit violent crimes after their release than those convicted of burglary or drug offenses, but the difference is not enough to make a blanket firearm prohibition illegitimate.333 The Seventh Circuit made similar observations in the Kanter v. Barr majority opinion.334 There is the additional problem of criminal-enterprise felons who rely on others to carry out violence on their behalf. As Judge Posner once observed, “We can tie these cases to the underlying statutory purpose of felon-in-possession laws by noticing that the felon is no less dangerous when he arms his associates in a criminal endeavor than when he arms himself.”335

Leaving aside whether or which drug crimes are inherently dangerous or violent, most of the remaining nonviolent, nondrug felonies are types of fraud—securities fraud, check fraud, mail fraud, counterfeiting, and so forth.336 Those who commit fraud run a risk of violent retaliation from their victims. While critics of the felon prohibitor might say that this is even more reason to let them have guns for self-defense, the problem is that the individuals have created this specific risk themselves by defrauding the victims, and one party arming themselves (i.e., the potential target of retaliation) can induce the other party to use a gun as well, thereby escalating the violence. Moreover, it presents a moral hazard problem, as some fraudsters will feel emboldened to commit crimes because they have armed themselves against retaliation by their victims. Many individuals who engage in a fraud scheme will do so more aggressively or recklessly if they arm themselves with guns for self-defense against their victims.

B.  Felons, Firearms, and Suicide

In discussions about felons having firearms, the focus is typically on whether they pose a danger to others; the elevated risk of suicide for felons is an overlooked problem. While suicides within prisons are a long-standing problem,337 “[t]he transition into the community is also a high-risk period for suicide.”338 Programs and policies to prevent suicides serve a legitimate policy goal (reducing premature and avoidable fatalities), and more targeted interventions are appropriate for individuals who are at an especially high risk for suicide. Released felons are one such group.339 This is another reason to reduce firearm access for felons, even if it is not the primary policy reason for doing so: “[I]t is well-established that prisoner suicide rates are elevated compared with age-matched general populations.”340

In the general nonfelon population, suicide accounts for almost two-thirds of the gun-related fatalities in the United States.341 Approximately sixty-one percent of all gun-related deaths in the United States are suicides, though the number varies from state to state.342 Explanations for the variation in suicide rates between states often start by comparing the relative prevalence of diagnosed mental illness, suicidal ideations, or past suicide attempts.343 Even so, household gun ownership is the best predictor for the differences in suicide rates344—the percentage of suicides correlates so highly with the percentage of gun-owning households “that the weapon mix in suicide serves as an accurate proxy for the prevalence of gun ownership in the population.”345 Suicide rates correlate with firearm availability (i.e., the presence of guns in the home, regardless of which housemate owns it).346 Studies show that those living in households where guns are present are far more likely to die of suicide than those without access to firearms in the home;347 in fact, the published literature “shows that firearm ownership is associated with an approximate three times increase in the likelihood of suicide.”348 Individuals having suicidal ideations who have a gun readily available in the home are much more likely to follow through with their ideations because they can act quickly on their impulses.349 Researchers have suggested that reducing access to guns would reduce acts of suicide, which account for approximately 61% of gun-related deaths.350 Without firearms, those who attempt suicide are much more likely to survive: nonfirearm suicide attempts succeed only 4% of the time, while suicide attempts with guns succeed at least 85% of the time.351 It is also worth noting that those who survive suicide attempts (mostly those who do not use a gun) are unlikely to commit suicide later by other means,352 so increasing the chance of survival for an initial attempt means saving lives long-term. To put it another way, individuals are quite likely to survive an impulsive suicide attempt if they do not use a gun, and almost no one survives if they do use a gun. Firearms change everything for suicide risks.353

Empirical studies have shown that red-flag laws, which allow via petition and judicial order for law enforcement to remove (temporarily seize) firearms from high-risk individuals, significantly reduce suicide rates.354 While I am not aware of any studies analyzing the effects of the felon-in-possession laws on felon suicide rates, the laws accomplish the same thing that red-flag laws effectuate—limiting access to firearm by high-risk individuals—and presumably the reduction in suicide rates would be similar.

Views differ about whether suicide should be a public policy concern. For example, the National Rifle Association’s website declares, “Gun owners are notably self-reliant and exhibit a willingness to take definitive action when they believe it to be in their own self-interest. Such action may include ending their own life when the time is deemed appropriate.”355 Predictably, public attitudes toward former felons are often uncharitable, so undoubtedly some would not see their suicides as a matter of concern. The alternative view is to see suicide as a social problem, a tragic loss of life that could have been avoided, and that merits some modicum of government intervention for the purposes of prevention.356 “Every year, suicide attempts take immense social and economic tolls on society. They can devastate families and communities while raising healthcare costs.”357 Some recent commentators have even argued suicide prevention as an international human rights issue.358 “Firearm suicide has both economic and social costs for the United States. Accounting for medical and indirect expenses, deaths by suicide and suicide attempts cost the nation over $93 billion in 2013.”359

Suicide risk is significantly more pronounced for those released after serving prison sentences. One study found that ex-convicts commit suicide at 3.4 times the rate of the general population in their first year or two out of prison.360 A number of factors contribute to this elevated suicide rate. “A high prevalence of underlying mental illness and the psychological stress of reentry may have contributed to the excess risk of suicide.”361 Other factors may be felons’ lack of employment opportunities, social isolation, and untreated substance abuse problems.362

Recent empirical studies tracking the former prison population in North Carolina also concluded, “Risk for homicide and suicide deaths were substantially higher among former inmates.”363 Again, a combination of factors contributes to this problem: “Suicides were associated with risk of reincarceration, relationship problems, depression, and other life circumstances.”364 Almost five percent of the deaths of released male inmates were suicides.365

A more recent study of the same cohort of formerly incarcerated individuals in North Carolina was even more dire.366 In this study, the researchers stated their conclusion in the article abstract: “Violent death rates for persons released from prison were more than 7 times higher than for the general adult population.”367

The situation is even worse for the one-third of former inmates who were subjected to solitary confinement at some point during their incarceration.368 Prison officials impose solitary confinement not due to the underlying crimes that resulted in the inmate’s incarceration, but rather to punish violations of prison rules or for security: i.e., the inmate poses a threat or is the target of threats.369 Those who experienced any period of solitary confinement had much higher rates of suicide after release, as well as drug-overdose deaths and homicides, especially for those who experienced it more than once.370

In commenting on this study, Andrea Fenster noted, “These preventable deaths aren’t outliers; in the U.S., where the use of solitary confinement is widespread, an estimated 80,000 people are held in some form of isolation on any given day, and in a single year, over 10,000 people were released to the community directly from solitary.”371 People with one placement in solitary confinement were 55% more likely to commit suicide within the first year of release.372 Those with multiple placements in solitary confinement were 129% more likely to commit suicide after release.373

Many of the factors that lead felons to commit suicide after release—unemployment, debt, lack of housing, disqualification for many public assistance programs, loss of family relationships, social stigma, or lingering trauma from their incarceration itself—affect felons regardless of the charges underlying their original conviction.374 One whose conviction was for check fraud or violating campaign finance laws will face the same dismal prospects for employment, housing, and relationships as one whose conviction was for drug charges or burglary. Distinguishing between “violent” and “nonviolent” felons for purposes of the Second Amendment and gun possession fails to recognize the similarities between these two groups when it comes to firearm suicide risks. A number of states have adopted laws for Extreme Risk Protection Orders to remove firearms temporarily from those who pose an elevated risk to themselves or others.375 Felons are categorically in the elevated-risk group for suicide, so the same logic that allows gun removal for individuals at risk for suicide would apply to felons—except that we can apply the protection as an ex ante prohibition on acquiring guns, rather than a reactive removal of guns.

C.  Reducing the Need for Incarceration

Even though the felon-in-possession laws have contributed to mass incarceration—offenders convicted of weapons violations in 2019 comprised eighteen percent of the federal prison population376—the same laws can also serve as part of the antidote to the incarceration crisis. Disarmament answers one of the main justifications for imprisoning offenders: the need to protect the public from violent criminals. As mentioned in an earlier section of this Article, recent estimates by empirical researchers suggest that the vast majority (over ninety-nine percent) of released felons comply with the firearm ban and abstain from owning firearms.377 Some of this compliance must be due to the deterrent effect of the long prison sentences that these individuals could face for having a gun. On the other hand, adding years to the length of prison sentences has a diminishing marginal effect on deterrence,378 and there is an early threshold after which the negatives of an additional year in prison (in aggregate social costs) outweigh the penological benefits.379 As the Seventh Circuit observed, “The length of a sentence . . . has less of a deterrent effect on such a person than the likelihood that he’ll be caught, convicted, and imprisoned.”380 The prison abolition movement has made a great contribution to developing preemptive solutions to prevent the need for incarceration. I believe felon disarmament—through proactive and consistent gun removal—will be a necessary component of the future of prison abolition.

California is one of the few states with a system in place for proactively disarming those who lawfully owned guns before becoming prohibited persons, by garnering felony convictions, but the program has been chronically underutilized and understaffed.381 California has a gun owner registry, so it has a record of everyone who purchased a gun at some time (but not records of who no longer has those guns due to loss, theft, etc.).382 The surge in gun sales in 2020 and 2021 made the process of checking and cross-referencing records (by hand) overwhelming, as this process is not automated, so the chronic backlog ballooned out of proportion.383 The system is supposed to notify local police departments each month about residents in their locale who were gun owners but who have now become prohibited persons under state or federal law; but many departments claim they do not receive these monthly notices.384 Other police complain that the program, as designed, is hard to enforce.385 Police are unable to obtain search warrants based merely on the notifications, unless they burnish it with evidence that the individual in fact has guns,386 a problem that might be solved if these were administrative searches instead. For many police departments, going door-to-door to ask for unlawfully possessed guns seems futile; understandably, many departments believe their resources are better spent solving crimes.387 Making matters worse, many state judges do not take the time to enter gun removal orders immediately when a conviction occurs, though they could do so.388

Each link in this chain could improve with more focused attention from policymakers. Staffing and automation at the state level require resources and accountability through proactive oversight. A regulatory agency should be handling the gun removals as a regulatory process, bringing police or sheriffs along when necessary. In the other forty-nine states that lack a registry of one-time gun owners, judges could have a court process to automatically issue warrants for law enforcement to search for and remove weapons when someone in their court receives a felony conviction, and states could cobble together a partial registry of known gun owners by aggregating databases of those with concealed carry permits, hunting licenses, and so forth.

Conclusion

While felon-in-possession laws may have fallen out of fashion in academic circles, they retain support in the federal judiciary, at least for now. This Article contributes to the literature by exploring the interconnectedness of our other gun laws with the felon-in-possession statutes, to show how narrowing the scope of the laws would have far-reaching and unforeseeable consequences. It also unpacks the proposed alternative of distinguishing between violent and nonviolent felons for purposes of applying Second Amendment protections to felons who want to acquire firearms. As discussed in the foregoing pages, this new approach would prove completely unworkable, beset with the same problems that the violent/nonviolent distinction has encountered in related areas of sentencing law.

Felon-in-possession laws serve larger policy goals than merely preventing convicted criminals from committing more gun crimes, though that is certainly a valid policy goal on its own. Disarming felons helps reduce the constant influx of firearms into the most vulnerable communities, thereby disrupting underground gun markets and limiting the supply of weapons available to other would-be criminals—not just the felons themselves. Felons themselves are also safer; as a high-risk group for gun suicide, reducing their access to firearms has the potential to save many lives. Though the current sentences for simple gun possession are unnecessarily long, the problem is with the sentences, not the gun ban itself. In fact, felon disarmament on its own—without a lengthy prison sentence—can play a vital role in the decarceration movement, helping preserve public safety without imprisoning so many individuals.

The felon-in-possession law merits further research in several areas. One point for future scholars to explore is the idea proposed in this Article of using periodic administrative searches combined with forfeiture orders to keep felons disarmed, and to use disarmament in lieu of imprisonment for many or most felons. Another area that deserves more research is the role that felons play in underground gun markets, and if the type of felony conviction correlates with either trafficking activities or being an inadvertent link in the supply chain via lending, sharing, and theft of their guns. Researchers could also investigate why felons are so disproportionately likely to try to buy firearms from gun dealers compared to the other eight categories of prohibited persons under § 922(g). Finally, scholars could help develop innovative ways to expand the reporting of felony convictions to the NICS database by entities other than law enforcement, who already have federally funded financial incentives to participate; some nonprofit community organizations, for example, could partner with local courts to ensure more consistent reporting of convictions to NICS, and could encourage more local judges to issue firearm confiscation orders in every felony conviction case. There is still much work to be done.

 


* Wayne Fischer Research Professor, South Texas College of Law Houston. The author would like to thank his institution for supporting this research with a summer writing stipend. Special thanks to Karen Duffin, Graciela Garcia, and Mackenzie McDonald for invaluable help as research assistants.