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Vanderbilt Law Review

First Page

631

Abstract

The federal felon-in-possession statute permanently bans felons from possessing firearms, regardless of the severity of the predicate felony conviction. Both a murder conviction and a mail-fraud conviction equally satisfy the statute's elements. Critics thus argue that the statute is too expansive. Despite the criticism, the felon-in-possession ban has generally survived Second Amendment challenges. But the U.S. Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen opened a new angle for constitutional challenges to the felon-in-possession ban. In Bruen, the Supreme Court established a history-and-tradition test for Second Amendment cases. Courts must now find historically analogous gun regulations to support modern ones instead of deferring to an interest-balancing rationale as they had previously done.
The lower courts subsequently split on Bruen's application to the felon- in-possession ban. Some interpreted historical gun regulations to mean that Congress can disarm anyone that breaks the law, while others interpreted the same laws to mean that Congress can disarm only dangerous lawbreakers. This Note assumes the latter approach to be correct, focusing specifically on the Sixth Circuit's framework in United States v. Williams. In Williams, the Court held that Congress can presumptively disarm all felons under one condition: that felons retain the opportunity to demonstrate that they are not dangerous via an as-applied challenge. And in the Court's view, dangerous felons are those with convictions for violent crimes or crimes that posed a threat of danger, like drug trafficking.
This Note argues that the Williams Court got much correct, but it erred in a key respect: The Court's conception of dangerousness is too broad. Ultimately, violent felons are dangerous and can be lawfully disarmed, but nonviolent felons are not dangerous and cannot be disarmed.

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