Lahny Silva is a professor at Indiana University Robert H. McKinney School of Law, where she teaches Criminal Law, Criminal Procedure, and supervises the McKinny Reentry Clinic. Her scholarship centers on prisoner reentry and the collateral consequences of conviction including felon firearm bans and restoration of gun rights.
This post provides a summary of a piece published in the Maryland Law Review – The Trap Chronicles, Vol. 3: Felons & Firearms, 84 Md. L. Rev. 309 (2025).
The question of whether the categorical disarmament of felons is constitutional is both a current and controversial issue percolating in federal courts around the country. Generally speaking, felon firearm bans were promoted and endorsed for close to a century and virtually without question by legislatures, courts, and the American public. However, the Second Amendment decisions handed down by the United States Supreme Court this century are now requiring scholars, jurists, and practitioners to rethink whether blanket felon firearm prohibitions can survive constitutional scrutiny. Lower federal courts encountering challenges to the federal felon dispossession statute, 18 U.S.C. § 922(g)(1) (“922(g)(1)”), are jurisprudentially split.[2] Despite the absence of textual language in the Second Amendment excluding felons from the right to bear arms several courts have upheld the statute. Many uphold the law on the notion that the government has the ability to disarm “dangerous” people. Using the “dangerousness” principle to justify felon disarmament is alarming as American history shows that such a principle is a slippery slope down a majoritarian path.
There is quite a robust history of firearm restrictions based on dangerousness dating all the way back to sixteenth century England and seventeenth century America. The United States Supreme Court, lower federal courts, and scholars alike have recognized the Anglo history in a comprehensive and well documented fashion. However, when examining the race based and ethnic firearm prohibitions that littered the American colonial law books and later, the codes in post reconstruction southern states, they fail to do the same. Lower courts along with many scholars seem reticent to discuss these types of firearm exclusions, by either completely omitting this history, summarily dismissing the tradition as no longer relevant, or by justifying these bans as a symptom of the era. The United States Supreme Court, however, does not sidestep race in its Second Amendment jurisprudence. In doing so, it recognizes that American gun control is historically rooted in racial fear and animus. Racial and ethnic groups historically deprived of the right to bear arms were all considered dangerous in some way. This rich history, once examined, produces comparable historical analogues. Such a history should not be used to justify a challenged regulation but instead ought to operate as a warning of the risks of using the word “dangerousness” to disarm and the potential for abuse by the majority. As Justice Thomas noted in his Rahimi dissent, “laws targeting ‘dangerous’ persons led to the Second Amendment.”
A. The Second Amendment of the New Millenium
Beginning with the District of Columbia v. Heller in 2008, followed by McDonald v. City of Chicago in 2010 and later New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, the Court reformulated the constitutional interpretation of the right to bear arms. Today, in America “the people” have a fundamental, individual right to bear arms for self-defense in the home and in public guaranteed by the Second Amendment to the United States Constitution.[3] The Second Amendment is no longer construed as a collective right in support of the militia. Throughout the above noted cases, the Court made passing references to the presumptive constitutionality of felon disarmament in dicta.[4] However, it failed to offer a constitutional principle or textual analysis on which the presumption rests.[5]
In Bruen, the Court further rejected means-end scrutiny as the appropriate constitutional frame when analyzing Second Amendment challenges and directed federal courts to instead apply a new test.[6] Writing for the majority, Justice Thomas provided an inquiry that considers the constitutional text of the Second Amendment along with the history and tradition of the challenged regulation.[7] The Second Amendment historical framework requires reviewing courts to evaluate historical practices in 1791 and 1868. That a historical practice is a proper analogue for a modern regulation involves a determination that “the two regulations” are “relevantly similar.”[8] The Bruen Court indicated “two metrics” to determine likeness: “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified[.]”[9] The historical analogue, however, need not be a “historical twin.”[10] Failure to meet the burden results in a determination of unconstitutionality.[11]
The Bruen framework was recently applied in the 2024 case of United States v. Rahimi.[12] In that case, the Rahimi Court attempted to clarify the new test; the challenged law should be consistent with the “principles” underlying the historical tradition of gun regulation as opposed to requiring a comparable statute.[13] The lone dissenter, Justice Thomas, condemned “approaches based on generalized principles” in a strongly worded opinion.[14]
B. Bruen at Step 2
There were no historical felon disarmament statutes in 1791 or in 1868.[15] Felon firearm prohibitions did not exist prior to World War I. But there were group exclusions at the Founding and post reconstruction eras. These bans fall into two primary categories: (1) prohibitions on whites and (2) restrictions on non-whites. Courts and scholars focus most prominently on the first category. This included whites at the Founding who refused to swear loyalty oaths to the Revolution and religious minorities.[16] In 1868, there is little evidence of the disarmament of groups that affect whites.
Regarding the second category, historical records show that racial exclusions were present and prevalent during the Founding and post reconstruction periods. Native Americans and both free and enslaved Blacks were disarmed at the Founding. In 1868, and primarily in post Reconstruction South, the Black Codes continued the American practice of disarming Blacks. Here, firearm prohibitions excluding Blacks at the Founding and post reconstruction will be discussed. The reason for doing so is because, unlike other racial and ethnic groups, Blacks were disarmed during both periods. Moreover, this racial group continues to be disproportionately impacted by firearm dispossession statutes.
- Justification
The justification for disarmament at the Founding, post reconstruction, and via § 922(g)(1) are all steeped in the dangerousness principle. At the Founding, Blacks with guns was a major concern. Keeping slaves and free blacks under control was critical and firearms in their hands was thought to be particularly dangerous.[17] Disarming blacks was not unique to the South as all thirteen colonies had some form of Black disarmament at the Founding.[18] The risk was not only of slave rebellion but also a threat to the entire plantation system and the southern economy.[19]
In 1868 the Black Codes were implemented and in effect in the south.[20] The Black Codes were race-based exclusions and rules including a ban on Blacks from possessing firearms. The justification for enacting these codes was preservation of the social order and control; these laws included indestructible annual labor contracts and firearm possession prohibitions.[21] The danger of Black firearm possession was to that of white supremacy. Reconstruction and the Civil War Amendments did little to extend the right to bear arms to the Black freedmen. The Black Codes simply continued the Founding era oppression.
The contemporary analogue, § 922(g)(1), codified by The Gun Control Act of 1968 (“GCA”) was also justified as a concern for “dangerousness.” The catalyst for the GCA was “widespread traffic in firearms . . . a significant factor in the prevalence of lawlessness and violent crime.”[22] Lower courts also point to Huddleston v. United States, where the Court recognized the intent of the GCA to reduce “lawlessness and violent crimes.” This interpretation led reviewing courts to authorize the disarmament of presumptively “dangerous” or “risky,” people under the statute post-Bruen.[23]
It is important to note that there are very specific non-violent white-collar crimes statutorily excepted from the definition of a “felony” that would otherwise form a sufficient predicate crime. These crimes include “antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices.” Convictions of these crimes are largely of white defendants.
- Burdens
The burdens imposed by historical Black firearm prohibitions during the Founding and post reconstruction eras are the most comparable to § 922(g)(1) in three ways. First, like § 922(g)(1), historical Black firearm bans in 1791 and 1868 imposed lifetime prohibitions on firearm possession and ownership. Section 922(g)(1) operates as lifetime disarmamentbecause there is no viable procedure available to restore gun rights to federal felons. While 18 U.S.C. § 925(c) was meant as a restoration process for federal felons, Congress defunded the statute in 1992 thus disarming this group permanently.
Secondly, restrictions at the Founding and post reconstruction encumbered Blacks faced with physical violent attacks. Historically, Black people in America have been statutorily precluded from exercising the right to self-defense, particularly against white violence.[24] Blacks were not only completely disarmed, but also Black self-defense was legally suppressed and enforced by white violence.[25] The burden imposed by § 922(g)(1) operates similarly. It is illegal for felons to possess a firearm even for self-defense in their own home, a fact recognized by Justice Barrett in her dissenting opinion in Kanter v. Barr. Additionally, post-incarceration felons are most likely to live in high-crime neighborhoods where armed self-defense is critical. A lifetime ban on firearm possession can put members of this group in a prisoner’s dilemma—potentially become a victim of homicide or go to prison.
Finally, the American history and tradition of disarmament had a disproportionate impact on the Black population similar to modern day felon bans. At the final census taken before the American Civil War approximately 4 million slaves and close to 500,000 free Blacks lived in the country. Race based historical prohibitions at the Founding disarmed 100 percent of Blacks in the southern states and most, if not all, in the North. In 1868, the Black Codes enacted in the southern states mirrored the wholesale firearm bans in place prior to the Civil War resulting in the continued disarmament of millions.
Though § 922(g)(1) does not operate to disarm Black people at the same rate as historical practices (100% vs. 33% [number of Black felons in the general population]), the number of Blacks disarmed by felony conviction is now well over 10 million people. In fact, America is imprisoning the same number of Black men in the twenty-first century as were enslaved in 1820. Because Blacks are prosecuted at a higher rate for drug offenses, § 922(g)(1) indictments are triggered more often. A United States Sentencing Commission (“USSC”) report in 2024 showed that 58.1 percent of the people imprisoned for § 922(g)(1) convictions were Black compared to 20.8 percent white. Once an individual is convicted of a § 922(g)(1) violation, the door is opened for an Armed Career Criminal sentence enhancement. Statistics show that Blacks comprised 73.7 percent of Armed Career Criminal designations compared to 15.7 percent of whites in the most recent report published by the USSC in 2019 Thus, the “Negroes” and “Mulattoes” of Founding era disarmament statutes and post reconstruction Black Codes are the “felons,” “dangerous,” and “violent” offenders in § 922(g)(1) and the Armed Career Criminal Act.
Reviewing this history comprehensively is important and we all ought to take heed to the cautionary tale that disarming “dangerous” people historically has led to the deprivation of critical rights of the disfavored classes. While felons are an unsympathetic group, they are released from prison with the idea that they are entitled to exercise the privileges of American citizenship. Unless the text of the Second Amendment precludes firearm possession by convicted criminals, there is no constitutional basis for categorical disarmament. America, a country born with a gun and a proclaimed commitment to equality, must decide whether it is indeed a republic or, instead, a majoritarian nation with rights for some but not for all.
A full-length article on felons and firearms is available here.
[1] This post provides a summary of a piece published in the Maryland Law Review – The Trap Chronicles, Vol. 3: Felons & Firearms, 84 Md. L. Rev. 309 (2025).
[2] Currently, the Sixth, Ninth, Tenth, and Eleventh Circuits suggest the statute is always constitutional as applied to felons as a class. Stimmel v. Sessions, 879 F. 3d 198, 210 (6th Cir. 2018); United States v. Rozier, 598 F. 3d 768, 771 (11th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010); In re U.S. 578 F.3d 1195, 1200 (10th Cir. 2009). The First, Fifth, Seventh, Fourth, Eighth, Eleventh and D.C. Circuits alluded to the possibility for as-applied challenges. United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011); United States v. Pruess, 703 F.3d 242, 247 (4th Cir. 2012); Rahimi, 61 F.4th 443, 451–53 (5th Cir. 2023), rev’d, 114 S. Ct. 1889; Atkinson v. Garland, 70 F.4th 1018, 1038 (7th Circ., 2023); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); Medina v. Whitaker, 913. F.3d 152, 160 (D.C. Cir. 2019); United States v. Jackson, 69 F.4th 495 (8th Cir. 2023), vacated, 85 F.4th 468 (8th Cir. 2024); United States v. Woosely 759 F.3d 905, 909 (8th Cir. 2014); United States v. Jimenez-Shilon, 34 F.4th 1042, 1043–46 (11th Cir. 2022). The Third Circuit is the only federal appellate court that upheld an as-applied challenge. Binderup v. Attorney General, 836 F.3d 336, 348–49, 385 (3d Cir. 2016); Range v. Attorney General, 53 F.4th 262 (3d. Cir. 2022).
[3] Heller, 554 U.S. at 685 (holding that the Second Amendment fundamentally protects an individual’s right to possess a firearm for self-defense in the home); McDonald, 561 U.S. at 749–50 (incorporating Heller’s holding to the states); Bruen, 142 S. Ct. at 2122 (expanding the right to possess a firearm outside the home).
[4] Id. at 627 (“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); McDonald, 561 U.S. at 786; United States v. Rahimi, 6144 S.Ct. 1889, 1902 (2024).
[5] Id.
[6] Bruen, 142 S. Ct. at 2128–30.
[7] Id.
[8] Id. at 2132.
[9] Id. at 2133.
[10] Id.
[11] Id. at 2118
[12] 144 S.Ct. 1889 (2024).
[13] Id. at 1898.
[14] Id. at 1946
[15] Kanter v. Barr, 919 F. 3d 437, 454 (7th Cir. 2019) (Barrett, J dissenting) (stating “The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws. That the best evidence “…would be founding-era laws explicitly imposing – or explicitly authorizing legislatures to impose – such a ban.”).
[16] Id.; See United States v. Daniels No. 22-60596 at 21 (5th Cir. 2023).
[17] Harry L. Wilson, Gun Politics in America: Historical and Modern Documents in Context 112 (2016).
[18]Id. at 11 (2016); Nicholas J. Johnson, David B. Kopel, George A. Moscary, & Michael P. O’shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy 103 (2012). See generally Act of June 7, 1712, no. 314, 1712 S.C. Laws, reprinted in The Statutes at Large of South Carolina 352–54 (David McCord ed. 1840) (providing for the better governing of slaves); Juliet E. K. Walker, Free Frank: A Black Pioneer on the Antebellum Frontier 21 (1983); 75 Archives of Maryland 268 (William Hand Browne ed., 1885 (enacted 1715).
[19] Sally E. Hadden Slave Patrols: Law and Violence in Virginia and the Carolinas, 135-37 (2003).
[20] District of Columbia v. Heller, 554 U.S. 570, 614–15 (citing H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236); Stephen P. Halbrook, Freedmen, The Fourteenth Amendment, and the Right to Bear Arms, 1866–1876, at 2, 12 (1998)(citing Mississippi’s “Act to Regulate the Relation of Master and Apprentice Relative to Freedmen, Free Negroes, and Mulattoes” which outlawed firearm possession by Blacks and Mulattoes); W.E.B. Du Bois, Black Reconstruction in America 1860–1880, 172 (First Free Press ed., 1998)(citing Florida’s statute prohibiting “Negro[es], mulatto[s], or person[s] of color [from possessing] any . . . firearms” without a license); Carol Anderson, The Second: Race and Guns in a Fatally Unequal America 85-86 (2023)(discussing Alabama, Mississippi, and South Carolina statutes that made it “illegal to sell give or rent firearms or ammunition of any description ‘to any freedman, free Negro, or mulatto.’).
[21] Anderson, supra note 19 (citing W.E.B. Du Bois, Black Reconstruction in America: The Oxford W.E.B. Du Bois, ed. Henry Louis Gates, vol. 6 Black Reconstruction in America (2016)).
[22] United States v. Jackson, 69 F.4th 495, 504 (8th Cir. 2023), vacated, 85 F.4th 468 (8th Cir.2024) (citing Pub. L. No. 90-351, § 901(a)(1)– (2), 82 Stat. 225, 225).
[23] United States v. Velazquez, No. 23-657, 2024 WL 49690, at *13 (D.N.J. Jan. 4, 2024); United States v. Hawkes, No. 22-111-GBW, 2023 WL 8433758, at *7 (D. Del. Dec. 5, 2023); United States v. Rowson, 652 F. Supp. 3d 436, 466 (S.D.N.Y. 2023); contra United States v. Bullock, 679 F. Supp. 3d 501, 534 (S.D. Miss. 2023); Jackson, 69 F.4th at 504; Range v. Att’y Gen. U.S., 53 F.4th 262, 281–82 (3d Cir. 2022), rev’d en banc, 69 F.4th 96 (3d Cir. 2023), vacated sub nom. Garland v. Range, 144 S. Ct. 2706 (2024).
[24] Benjamin Quarles, The Colonial Militia and Negro Manpower,” 45 Miss. Valley Hist. Rev. 647, 645 (1959); Anderson, supra note 19, at 7-8.
[25] Anderson, supra note 19 at 7-8.
