Scholarship Highlight: Felon Bans, Regulating Gun Carrying while Intoxicated, and Bruen in the Lower Courts

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In her forthcoming article Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs, Laura Abelson argues that “a rollback in regulation renders most Americans constitutionally entitled to possess firearms, with one segment—the same segment left behind by prior over-criminalization waves—punished with increasing severity for the exact same conduct.”   Focusing on both application and sentencing, Abelson argues that felon bans “sweep too broadly, punishing individuals who pose limited risk of dangerousness, and exacerbating existing racial disparities in the criminal justice system.” 

In an article just published in the Marquette Law Review, F. Lee Francis argues "that laws criminalizing and further restricting an individual’s right to bear arms due to intoxication are unconstitutional and directly contradict the original public meaning and tradition of the Second Amendment" under the Bruen test.  Mark Frassetto has posted an essay responding to Francis that examines various historical evidence that might support bans on carrying guns in public while intoxicated.  Frassetto observes that, “[b]eyond laws specifically prohibiting carrying guns while intoxicated, during the Founding Era and nineteenth century, there were nearly universal prohibitions on simply being intoxicated in public” and collects evidence of a broad tradition of prohibiting dangerous individuals from possessing guns.

And, in a new student piece in the Fordham Law Review Online, Leo Bernabei traces the initial lower court reaction to and application of Bruen.  Bernabei observes that “lower courts have not interpreted [Bruen] consistently” and that guidance from the Supreme Court is needed. 

Laura Abelson, Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs, 15 U.C. Irvine L. Rev. (forthcoming)


The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws. This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal. I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi. I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.

F. Lee Francis, Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen, 107 Marquette L. Rev (2024)



In 2001, the Michigan state assembly passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that “acute and chronic alcohol misuse is positively associated with firearm ownership, risk behaviors involving firearms, and risk for perpetrating both interpersonal and self-directed firearm violence.” Researchers also found that “[i]n an average month, an estimated 8.9 to 11.7 million firearm owners binge drink.” In an attempt to combat gun violence and alcohol use, researchers have suggested restricting firearms for those who misuse alcohol or drugs.

In light of the data, it is not unreasonable to think that the Michigan legislature sought to prevent gun violence in connection with alcohol and drug use. However, such policies are clearly at odds with the original understanding of the Second Amendment.

This paper argues that the intoxicant rule as a limitation on one’s Second Amendment rights is antithetical to the original public meaning of the Constitution. More simply, I argue that laws criminalizing and further restricting an individual’s right to bear arms due to intoxication are unconstitutional and directly contradict the original public meaning and tradition of the Second Amendment. Thus, I undertake to explain that the foundational case on point, New York State Rifle & Pistol Association, Inc. v. Bruen, provides a clear basis for overturning the intoxication rule as an impermissible burden on the right to bear arms as protected by the Second Amendment.

Mark Frassetto, The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's ‘Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen', 108 Marquette L. Rev (forthcoming)



Recently, the Marquette Law Review published "Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen" by Prof. F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and alcohol, the tradition of regulating intoxication and substance abuse generally, and the broader tradition of prohibiting dangerous people from possessing firearms all provide historical support for the constitutionality of modern prohibitions on intoxicated people carrying and using firearms.

This article will critique Francis’s article in three ways. First, Francis fails to acknowledge the full scope of the historical regulation of intoxicated people carrying firearms, which was extensive, especially during the mid-to-late-nineteenth century, the period which is most relevant to the Second Amendment analysis of state laws. Second, Francis’s piece fails to grapple with the ubiquitous general prohibition on public intoxication, which existed during the Founding Era and for much of American history. Third, Francis’s piece fails to address the historical tradition of prohibiting firearms possession by those who, like intoxicated people, posed a danger to themselves or others. All three of these traditions provide strong support for the constitutionality of prohibiting firearms possession by intoxicated individuals.

Leo Bernabei, Bruen as Heller: Text, History, and Tradition in the Lower Courts, 92 Fordham Law Review Online 1 (2024)


The Constitution and conventional wisdom suggest that lower courts must follow the most persuasive interpretations of U.S. Supreme Court precedent.  But that does not always happen.  Scholars recognize judicial under enforcement of Supreme Court precedent in several fields.  This Essay contributes to this scholarship by analyzing lower court applications of New York State Rifle & Pistol Ass’n v. Bruen, in which the Supreme Court held that firearm laws must be consistent with the nation’s historical tradition of firearm regulation.  The lower courts vary widely in their approaches to analyzing gun laws under this standard.  On one end, a small handful of courts has required near historical twins or tight analogues to uphold challenged regulations.  Other courts feel comfortable upholding modern gun laws based on historical enactments that are only remotely analogous.  Finally, some courts have avoided a historical inquiry entirely by fashioning a “Bruen Step Zero” or by relying on pre-Bruen circuit precedent that they find to be binding.

One impetus for Bruen was judicial under enforcement of the Second Amendment in the decade following District of Columbia v. Heller.  Whether Bruen will experience the same fate remains to be seen.  Accordingly, to ensure that lower courts properly enforce Second Amendment claims, this Essay suggests that the Supreme Court clarify the level of generality that Bruen requires.