Presumptively Lawful Flashcards
Do you agree that Heller’s “presumptively lawful” language means that the items on the list have textual and historical support? Or, aren’t we bound to assume as much by Vongxay?
• Not necessarily, your honor. But even if it did, DVMs aren’t on that list. So, the government would still bear the burden of showing that whatever tradition would support a felon-in-possession ban would also validate 922(g)(9).
Shouldn’t we reason that if there’s textual and historical support for disarming even non-violent felons, they must be able to disarm violent misdemeanants? Isn’t 922(g)(9) more consistent with the historical tradition of disarming dangerous persons than (g)(1)?
• I’d dispute the premise that there must be historical support of Heller’s presumptively lawful categories. But even assuming that’s true, the government would still bear the burden of showing that whatever tradition would support a felon-in-possession ban would also validate 922(g)(9). And it’s not obvious that that would be the case. As we noted in the amicus brief, many scholars have tried to ground felon-in-possession bans on the particular disabilities that historically came along with felony convictions. As Judge Bea pointed out in his Chovan concurrence, that logic would not extend to misdemeanors, which historically have been treated differently.
Isn’t the list of presumptively lawful regulations nonexhaustive? Why should we add DV misdos to the list, given their obvious similarity to felon-in-possession laws and other common-sense public safety measures?
• A couple of reasons. First off, Bruen holds that the “only” way to validate a firearms restriction is through the text and history method. So, it would violate Bruen to instead uphold a regulation by analogizing to Heller’s list of presumptively lawful regulations. Second, as this Court recognized in Chovan, disarming DVMs is not a “longstanding” regulatory measure, and thus, it doesn’t fit Heller’s terms. That conclusion is binding on this Court. (The Fourth Circuit came to the same conclusion in Chester.) And third, both historically and today, the law has long recognized an important distinction between felonies and misdemeanors
Isn’t this list at least good evidence that we’re on the right track if we uphold 922(g)(9)?
• No, your honor, because it’s not obvious that the founders would agree to a ban on misdemeanants, even if they would allow for a ban on felons. As we noted in the amicus brief, many scholars have tried to ground felon-in-possession bans on the particular disabilities that historically came along with felony convictions. As Judge Bea pointed out in his Chovan concurrence, that logic would not extend to misdemeanors, which historically have been treated differently
Doesn’t the “presumptively lawful” list itself prove that modern laws need not mirror historical precursors?
• Even more so, Bruen explicitly says that. The legislature isn’t limited to historical twins
Doesn’t the “presumptively lawful” list show that Congress can be overinclusive?
• Not necessarily, your honor. It depends on the particularities of why the Founders would have tolerated those regulations. Many of the government’s arguments on felon disarmament, for instance, rest on the notion that felons are categorically outside the Second Amendment. WE disagree, but if that were true, then 922(g)(1) would not be overinclusive
The impetus for 922(g)(9) is that prosecutors cannot obtain felony convictions in many DV cases because of the particular challenges those cases pose. So, in light of that legislative finding, shouldn’t we be thinking about the DV cases as essentially equivalent to felony cases?
• It would be patently unconstitutional under the Fifth and Sixth Amendments to treat all DVMs like felons without requiring the government to plead and prove a felony charge. A legislative finding cannot overcome constitutional protections.
• We see this in Rahimi. His rights remain intact even though he was suspected of additional criminal conduct at the time, because he had not yet sustained a conviction
