Is There a Constitutional Right to Be Rearmed?

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

Since Bruen was decided in 2022, our country has entered a new era of Second Amendment litigation. Over the past two years, litigants have wielded Bruen’s history and tradition test to offensively challenge all manner of gun regulation, not just the kinds of permitting laws at issue in Bruen itself. These challenged regulations include, among others, laws governing where guns can lawfully be carried; zoning rules that forbid the construction of shooting ranges; and statutes demanding that guns be kept out of the hands of certain people.

Of these challenges, those in the last group—cases about who may lawfully possess guns—are among the most potentially impactful. State and federal laws prohibit the possession of firearms by convicted felons, alleged domestic abusers, and individuals who pose demonstrable threats when armed, among others. These laws work to disarm thousands of Americans every year, a significant number of whom are currently serving criminal sentences for violating such laws, and many thousands more are prevented from purchasing firearms due to failed NICS background checks. It is no surprise, then, that felon prohibitors, restraining-order disarmament, and red flag laws have so quickly become the subject of constitutional challenges in cases like United States v. Rahimi, Garland v. Range, and others. 

Curiously, when disarmament laws are challenged in the courts, little attention is paid to a threshold question—whether the type of disarmament being challenged is permanent or temporary in nature. In other words, courts and litigants rarely analyze the constitutional significance of disarmament’s occasional successor: rearmament. Rearmament can be defined as any legislative, judicial, or executive action or procedure whereby the government returns firearms, or the right to possess them, to an individual or group who has been disarmed. Rearmament is already part of the modern firearms law landscape; depending on the state, disarmed individuals can seek rearmament through pardons, expungements, as-applied constitutional challenges, certificates of rehabilitation, judicial or executive orders and declarations, and other ways. And most gun lawyers likely have experience litigating rearmament cases. It is surprising, then, that rearmament is largely ignored during litigation brought under the Second Amendment.

Beyond simply presenting an incomplete picture of firearms law as a practice, I believe that courts’ and litigants’ myopia—focusing on disarmament while ignoring rearmament—is an analytical misstep of constitutional magnitude. When defending a disarmament law under the Second Amendment, the government must use analogies to historical regulations to identify “principles that underpin the Nation’s regulatory tradition”—principles which must also justify the modern regulation at issue. In determining which historical laws are sufficiently analogous to serve as such legitimizing exemplars, the Supreme Court instructs courts to consider the “how” and “why” of the historical regulations. It strikes me as more than plausible—especially after Rahimi, as discussed below—that the permanence and duration of an act of disarmament is a nontrivial part of this “how” analysis. And for constitutional challenges rooted in other provisions—the Due Process Clause of the Fifth Amendment, for example—the permanence of disarmament’s liberty-infringement likewise seems highly relevant to the constitutional calculus.

To demonstrate the ways that rearmament may alter or affect this constitutional analysis, my article proceeds by examining principles of historical firearm regulation commonly relied upon by courts and/or government attorneys in recent disarmament cases. (While the propriety of using “principles” as the starting place for assessing the constitutionality of disarmament laws was left unclear after Bruen, Chief Justice Roberts’ majority opinion in Rahimi seems to confirm that “principles” are, indeed, the right tools for this job.) I subject each principle to two kinds of scrutiny—an internal audit from within the Second Amendment via the history and tradition test, and an external challenge that draws on other constitutional doctrines such as due process and equal protection.

Take, for example, the principle recently blessed by the majority in Rahimi—that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” I count seven Justices (the majority bloc minus Justice Gorsuch, who, despite signing onto the Chief’s majority opinion, apparently disapproves of the use of “principles” in Second Amendment doctrine) who support the notion that this principle, as gleaned from historical surety and “going armed” laws, justifies modern disarmament of people subject to domestic violence restraining orders under 922(g)(8). According to the majority opinion, these two categories of historical laws are “relevantly similar” to 922(g)(8) “in both why and how” they “burden[] the Second Amendment right.”

Before Bruen, my concern about the permanence and duration of disarmament would have fit squarely within the “tailoring” portion of the interest-balancing analysis, which evaluates to what degree the challenged law achieves the governmental interests it purports to serve. But, as mentioned above, I believe a similar type of analysis can operate within Bruen’s history and tradition framework—namely, as part of the “how” phase of Bruen’s second, analogical-reasoning step. Unlike many lower court opinions analyzing Second Amendment challenges post-Bruen, the majority opinion in Rahimi actually identifies the impermanence and limited duration of the disarmament worked by 922(g)(8) as a locus for comparison with the historical laws in question. The Chief discusses how “922(g)(8)’s restriction was temporary as applied to Rahimi,” noting that the statute “only prohibits firearm possession so long as the defendant ‘is’ subject to a restraining order” (which, in Arkansas, for example, could last as long as ten years). The Chief likens 922(g)(8)’s “temporary” prohibition on firearms possession to historical surety laws, which imposed bonds that “could not be required for more than six months at a time.” Later, the Chief characterizes Rahimi as holding only that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment” (emphasis added). (And according to Justice Gorsuch, the Court explicitly “[did] not resolve whether the government may disarm an individual permanently.”) If we take the Chief at his word, then Rahimi seems like a win for the rearmament cause, providing a good-enough example of how the temporality of disarmament might figure into the history and tradition test in a Second Amendment case.

To see how rearmament might inform challenges based in other provisions of the Constitution, consider the “dangerousness” principle. This principle can be formulated in a variety of ways, but they all boil down to something close to then-Judge Amy Coney Barrett’s formulation from her Kanter v. Barr dissent: “[L]egislatures have the power to prohibit dangerous people from possessing guns.” (Note that this principle is not identical to the one vindicated in Rahimi, which is much narrower in scope. Andrew Willinger touches on the differences between the two in this blog post.) A version of the dangerousness principle was cited by the Solicitor General’s office in its petition for certiorari in Garland v. Range, an appeal from a Third Circuit case holding 922(g)(1)’s felon prohibitor unconstitutional as applied to a man convicted of making a false statement to obtain food stamps. The SG argues that, because felons are, as a class, “‘more likely to commit violent crimes’ than are law-abiding individuals,” they may therefore be categorically disarmed without an individual finding that they are likely to pose a risk of future violence.

Putting aside Second Amendment concerns, the Fifth Amendment’s Due Process clause seems like a powerful check on laws like 922(g)(1), which operate based on legislatively-drawn categories (“felons”) that do not neatly correspond to the mischief the law seeks to prevent (“firearm possession by dangerous people”). Indeed, the Due Process-rooted doctrine against irrebuttable presumptions—which courts have used to strike down legislative enactments that regulate entire classes of people without affording individual class members an opportunity to demonstrate that they should be exempted—exists for precisely this purpose.

If this kind of Due Process challenge were brought today, a crucial factor in the analysis would be the permanence and duration of 922(g)(1)’s prohibition. 922(g)(1)’s ban is not technically permanent; according to 921(a)(20), felons who fall within the ban can seek rearmament through a small handful of avenues for collateral relief. Furthermore, when 922(g)(1) was originally passed, it was coupled with a separate rearmament provision—925(c)—which allowed the Attorney General to relieve an applicant of the disabilities imposed by 922(g) if the applicant could demonstrate that they “will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” However, since 1992, every Congressional appropriation to the Bureau of Alcohol, Tobacco, and Firearms has contained a provision expressly forbidding the use of appropriated funds “to investigate or act upon applications for relief from Federal firearm disabilities under 18 U.S.C. § 925(c),” rendering the procedure effectively defunct. Any faithful analysis of the constitutionality of 922(g)(1) must reckon with the extremely narrow avenues for rearmament available to prohibited felons under the current regime; it may very well be the case that, without 925(c)’s mechanism for filtering out non-dangerous felons, 922(g)(1) constitutes an irrebuttable presumption of lifetime dangerousness and therefore violates the Due Process clause.

These two examples demonstrate how the permanence and duration of a disarmament law can be relevant to constitutional analysis both within and beyond the Second Amendment. This point may seem obvious; if it does, then my surprise at rearmament’s absence from disarmament discourse is justified, and my article’s main goal—to state the obvious in explicit terms—is all the more necessary. But despite its necessity, my endeavor is a modest one: I seek merely to widen the scope of constitutional firearms discourse from its focus on the act of disarmament alone to include both disarmament and rearmament. My thesis is simply “rearmament matters,” and my mission is to begin a conversation, not to pen the final word. By doing so, I hope to shift the discussion, in whatever small way, toward a more faithful application of the Constitution to disputes over disarmament’s legality.