Stevenson on The Felon Prohibitor

  • Date:
  • September 3rd, 2021

By: Jacob Charles

Friend of the blog (and occasional guest blogger) Dru Stevenson has posted a new article on SSRN, "In Defense of Felon-in-Possession Laws," forthcoming in the Cardozo Law Review. In an era where the felon prohibitor is under attack from both the left (mainly on policy grounds) and the right (mainly on constitutional grounds, at least for some prior offenders), Dru's defense is worth taking seriously. Below is the abstract:

The federal statute prohibiting convicted felons from possessing, selling, or using firearms, 18 U.S.C. § 922(g)(1), is our most important gun regulation in terms of enforcement or limitations on ownership. Yet the statute and its operation have received little academic attention, even among scholars who write about gun rights and gun control. It functions as the cornerstone of the federal background check system for firearm purchases, as it is the most frequent reason for denials in gun purchaser background checks; violations of this statute are one of the primary grounds for revoking licenses of gun dealers. Recent academic articles and court challenges have attacked the constitutionality of felon-in-possession laws, or at least the breadth of their coverage. These challenges and critiques have argued that firearm disqualification should apply only to “dangerous” felons or those with “violent” felony convictions.

This Article sets forth a defense of felon-in-possession laws, approaching the issue from four angles. First, the legitimacy of the federal law is well-settled: The Supreme Court’s landmark decision in Heller expressly stated that the felon prohibitor rule remained untouched by the Court’s decision in that case. Every circuit court has rejected facial constitutional challenges to the law, most have rejected as-applied challenges as well, and the Supreme Court has repeatedly refused to hear these cases. Second, the centrality of the felon-in-possession law to our overall system of firearm regulation means that abolishing it or significantly narrowing it would be extremely disruptive and have unforeseen consequences. Third, the counterproposal, to distinguish between “violent” and “nonviolent” felonies, has already proved unworkable in related areas, such as the ACCA and the federal sentencing guidelines. Fourth, this Article shows that the felon prohibitor rule is necessary because it is the best way to keep guns out of vulnerable, poverty-stricken communities, and to protect the felons themselves, who are in a high-risk group for gun suicides. At the same time, some modifications to the rule – especially in terms of sentencing – could mitigate the problem of its contribution to mass incarceration.