Publication Date
June 3, 2024
Abstract
In the United States of America, the federal government and many state governments have statutes that have banned all convicted felons from “ship[ping], transfer[ing], possess[ing], or receiv[ing]” firearms or ammunition. The statute applies equally to felons convicted of low-level, non-violent offenses like forgery or tax fraud as it does to high-level, violent offenses like aggravated murder or rape. Treating every felon the same, without any consideration of their underlying charge, unconstitutionally infringes on their Second Amendment right to keep and bear arms without significant justification.

Convicted felons do not lose their First Amendment rights to freedom of speech or freedom of religion, so why do they lose their Second Amendment right to keep and bear arms? They retain their Fourth Amendment right to be secure from warrantless search and seizure in their own homes, so why do they lose their Second Amendment right to self-defense of their home? Felons still retain their Sixth Amendment right to effective assistance of counsel when faced with criminal charges, so why should they lose their Second Amendment rights when convicted of those criminal charges? The blanket ban on all felons possessing and using firearms is a cruel and unusual punishment in violation of the Eighth Amendment.
Recommended Citation
Halle Marchetta, Bringing a Knife to a Gun Fight; A Cruel and Unusual Punishment (Firearms Rsch. Ctr., Working Paper No. 2024-1).
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