Federal law permanently prohibits anyone who has been convicted felony from possessing a firearm. Keeping lethal weapons out of the hands of those who pose a risk to public safety is no doubt a worthy
policy goal. But the federal felon-in-possession ban is blunt, punitive, and supremely damaging to the ex-felons who fall within its ambit. The statute’s sweeping scope ensures that any ex-felon who possesses any firearm for any length of time for any reason can be swiftly and harshly punished. And it indiscriminately targets conduct that is often neither harmful nor criminal.
The felon-in-possession ban gained constitutional significance following the Supreme Court’s landmark decision in District of Columbia v. Heller. The Heller Court recognized for the first time an individual Second Amendment right to possess a firearm for selfdefense in the home. Yet by imposing substantial criminal liability on any form of firearm possession by an ex-felon, the felon-in-possession
ban categorically strips a sizable portion of Americans of this very same right.
This Note argues that it is high time to rethink the federal felon-inpossession ban’s role in a post-Heller world. It argues that the statute’s expansive reach is poorly tailored to addressing gun violence and
highlights the weak doctrinal foundation on which the felon-inpossession ban is built.
But this Note goes further than most existing
Suppose you have a felony conviction on your record.1 If
committing any sort of heinous crime seems unthinkable, then consider
something more pedestrian—perhaps you have a handful of drug
possession charges from your younger years,2 once rashly punched
someone during a fight,3 or cashed a few Social Security checks that
continued to arrive in the mail after your elderly mother passed away,4
all of which qualify as a felony. And for good measure, say you
managed to avoid spending a single night in jail.5 In your case, a fine6
or brief period of probation7 was punishment enough.
Now suppose that a police officer, while responding to a domestic
disturbance at your residence8 or patting you down as part of a routine
frisk,9 happens to stumble upon a firearm in your home or on your
1. See Felony, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A serious crime usu.
punishable by imprisonment for more than one year or by death.”).
2. See United States v. Rozier, 598 F.3d 768, 769 (11th Cir. 2010) (per curiam) (affirming
the felon-in-possession conviction of a defendant with a handful of prior drug convictions).
3. See Schrader v. Holder, 704 F.3d 980, 982 (D.C. Cir. 2013) (upholding the application of
the federal felon-in-possession ban to a defendant who was convicted of assault and battery after
a fistfight forty-five years earlier).
4. See 42 U.S.C. § 408(a)(4) (2018) (punishing such Social Security fraud with a prison
sentence of up to five years).
5. See Schrader, 704 F.3d at 983 (emphasizing that the defendant’s conviction of
misdemeanor assault and battery did not subject him to any jail time).
6. See 18 U.S.C. § 3571(a) (2018) (“A defendant [in federal court] who has been found
guilty of an offense may be sentenced to pay a fine.”).
7. See id. § 3561 (authorizing a “sentence to a term of probation” for federal infractions,
misdemeanors, and certain felonies).
8. See United States v. Bartelho, 71 F.3d 436, 438–39 (1st Cir. 1995) (recounting a police
search during a domestic disturbance dispatch that discovered a firearm within an ex-felon’s
9. See United States v. Vongxay, 594 F.3d 1111, 1113–14 (9th Cir. 2010) (detailing a personal
search of the defendant by a police officer that led to a felon-in-possession charge).
2021 TIME TO RELOAD 1331
person. Or perhaps your probation officer, while conducting a
warrantless search of your bedroom,10 finds the pistol you keep in your
nightstand just in case you ever need to ward off an intruder. Or maybe
a police detective discovers a few photos of you flaunting a handgun on
your Facebook profile.11 Regardless of whether the gun is yours or
someone else’s, whether it was a gift or lawfully purchased, whether it
is a handgun or a hunting rifle, or whether your felony conviction
occurred two years ago or twenty, you could be easily convicted of a
serious federal offense.12
Since 1968, federal law has prohibited any person convicted of a
crime “punishable by imprisonment for a term exceeding one year”
from possessing a firearm.13 The scope of this felon-in-possession ban,
which is codified in 18 U.S.C. § 922(g)(1), is expansive. It encompasses
ex-felons convicted of violent and nonviolent crimes alike, and the
statute’s prohibition on firearm possession lasts for life.14 The ban is
also robustly enforced. Firearms offenses, as a class, are the third most
common type of conviction in the federal system,15 and roughly one in
ten federal convictions involves a violation of the felon-in-possession
ban.16 Punishment for violating the ban can be harsh. An ex-felon can
face a prison sentence of up to a decade,17 with the average sentence
10. See Griffin v. Wisconsin, 483 U.S. 868, 872 (1987) (holding that a warrantless search by a
probation officer of a probationer’s home, which uncovered a gun and resulted in the probationer
being convicted of possessing a firearm as a convicted felon, did not violate the Fourth
11. See United States v. Farrad, 895 F.3d 859, 864–65 (6th Cir. 2018) (describing a felon-inpossession
conviction which relied on evidence generated by a police search of the defendant’s
12. See infra Part II.A.
13. 18 U.S.C. § 922(g)(1) (2018).
14. See infra Part II.A.
15. U.S. SENT’G COMM’N, 2019 ANNUAL REPORT AND SOURCEBOOK OF FEDERAL
SENTENCING STATISTICS 45 (2019), https://www.ussc.gov/sites/default/files/pdf/research-andpublications/
16. U.S. SENT’G COMM’N, QUICK FACTS: FELON IN POSSESSION OF A FIREARM 1 (2020)
[hereinafter FY 2019 Quick Facts], https://www.ussc.gov/sites/default/files/pdf/research-andpublications/
17. 18 U.S.C. § 924(a)(2). While the maximum sentence for a standalone violation of § 922(g)(1)
is ten years, id., under the Armed Career Criminal Act (“ACCA”), any defendant convicted under
§ 922(g)(1) who also has three previous convictions for a “violent felony or a serious drug offense,” as
defined by the ACCA, is instead subject to a statutory minimum sentence of fifteen years and a
maximum sentence of life imprisonment, id. § 924(e)(1).
1332 DUKE LAW JOURNAL [Vol. 70:1329
exceeding five years.18 And a conviction under § 922(g)(1) is generally
easy to prove.19 The government need only establish that a defendant
with any felony conviction possessed any firearm whatsoever for any
duration of time for any reason.20 The trier of fact is left with an
uncomplicated decision: a person with a felony record either did or did
not possess a firearm.21 Case closed.
The federal felon-in-possession ban is blunt and punitive for a
reason. In theory, it aims to prevent a “presumptively risky” group of
people22—namely, individuals who have broken the law and therefore
pose an enduring risk to public safety—from wielding lethal weapons.23
The modern ban and its early twentieth-century precursors were
explicitly passed, in fact, to address the violence and criminal activity
associated with firearms.24
But any law like § 922(g)(1) that facilitates the lengthy
reincarceration of ex-felons also comes with attendant harms, and the
specific harms imposed by the federal felon-in-possession ban gained
constitutional significance following the Supreme Court’s landmark
18. FY 2019 Quick Facts, supra note 16, at 2. The average sentence for defendants convicted
under § 922(g)(1) who were also subject to an ACCA enhancement is 188 months, and the
average sentence for those who do not face an ACCA enhancement is 58 months. Id.
19. See infra Part II.A.
20. See, e.g., United States v. Teemer, 394 F.3d 59, 64 (1st Cir. 2005) (noting that § 922(g)(1)
“bans possession [of a firearm] outright without regard to how great a danger exists of misuse in
the particular case”).
21. In fiscal year 2019, 97.7 percent of defendants convicted under § 922(g)(1) were men. FY
2019 Quick Facts, supra note 16, at 1. Accordingly, this Note defaults to masculine pronouns when
referring to ex-felons impacted by the federal felon-in-possession ban. This is done solely for
simplicity and clarity.
22. United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010).
23. See Kanter v. Barr, 919 F.3d 437, 448 (7th Cir. 2019) (recognizing § 922(g)(1)’s purpose
as “preventing gun violence by keeping firearms away from persons, such as those convicted of
serious crimes, who might be expected to misuse them”).
24. See JOSEPH BLOCHER & DARRELL A. H. MILLER, THE POSITIVE SECOND
AMENDMENT 42–50 (2018) (describing the history of modern federal firearms regulations); see
also, e.g., Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 1201, 82
Stat. 197, 236 (stating that “[t]he Congress hereby finds and declares that the receipt, possession,
or transportation of a firearm by felons” constitutes, among other things, a “threat to the safety
of the President of the United States and Vice President of the United States” as well as a “threat
to the continued and effective operation of the Government of the United States and of the
government of each State”); id. § 901, 82 Stat. at 225 (declaring in part that the “ease with which”
criminals can obtain firearms “is a significant factor in the prevalence of lawlessness and violent
crime in the United States”).
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decision in District of Columbia v. Heller.25 There, the Court held for
the first time that the Second Amendment guarantee of “the right of
the people to keep and bear Arms”26 extends to the private use of
firearms for self-defense in the home.27 Yet, by criminalizing firearm
possession for ex-felons, § 922(g)(1) effectively prohibits a substantial
number of Americans from exercising this very same constitutional
The Heller majority attempted to square this circle by asserting in
passing that nothing in the Court’s opinion should “cast doubt on
longstanding prohibitions on the possession of firearms by felons”29
and other “presumptively lawful” gun regulations.30 The Court then
bridged the yawning doctrinal gap between these broad exceptions and
the Court’s grounding of its newly minted constitutional right in the
“inherent right of self-defense” by insisting that the Second
Amendment’s protections extended only to “law-abiding, responsible
citizens.”31 And lower federal courts, relying on this language, have
routinely rejected Second Amendment challenges to § 922(g)(1)’s
constitutionality post-Heller,32 either by citing the Heller majority’s
“presumptively lawful” language33 or concluding that the felon-inpossession
ban survives the appropriate level of constitutional
25. District of Columbia v. Heller, 554 U.S. 570 (2008).
26. U.S. CONST. amend. II.
27. Heller, 554 U.S. at 635.
28. See Sarah K.S. Shannon, Christopher Uggen, Jason Schnittker, Melissa Thompson, Sara
Wakefield & Michael Massoglia, The Growth, Scope, and Spatial Distribution of People with
Felony Records in the United States, 1948–2010, 54 DEMOGRAPHY 1795, 1806, 1808 (2017)
(estimating that roughly 8 percent of the U.S. adult population has a felony conviction, which
equates to approximately nineteen million people).
29. Heller, 554 U.S. at 626.
30. Id. at 627 n.26.
31. Id. at 635.
32. See infra Part I.B.
33. E.g., United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). But see id. at 1049
(Tymkovich, J., concurring) (expressing concern that the Supreme Court’s “summary treatment
of felon dispossession in dictum [in Heller] forecloses the possibility of a more sophisticated
§ 922(g)(1)’s scope”).
34. See, e.g., Schrader v. Holder, 704 F.3d 980, 991 (D.C. Cir. 2013) (upholding § 922(g)(1)’s
constitutionality for being “substantially related to the important governmental objective of crime
1334 DUKE LAW JOURNAL [Vol. 70:1329
Many scholars note the tension between Heller’s proclamation of
a fundamental right purportedly belonging to “all members of the
political community”35 and its uncritical approval of laws like
§ 922(g)(1) that categorically exclude ex-felons from the Second
Amendment’s reach.36 But the scholarship has largely focused on
whether the federal felon-in-possession ban and similar firearm
restrictions are justified by history or the Constitution’s text.37
This Note takes a more practical approach to evaluating the
federal felon-in-possession ban by focusing on the statute’s concrete,
on-the-ground effects beyond the dignified confines of the academy or
an appellate courtroom.38 It argues that § 922(g)(1)’s sweeping scope
ensures that the statute indiscriminately punishes conduct that is often
unrelated to criminal activity.39 It also addresses how the felon-inpossession
ban is built on a weak doctrinal foundation.40 But this Note
goes further than most existing scholarship by also examining the
35. Heller, 554 U.S. at 580.
36. See, e.g., Darrell A. H. Miller, Guns as Smut: Defending the Home-Bound Second
Amendment, 109 COLUM. L. REV. 1278, 1292 (2009) (describing the Heller opinion as “one that
boldly sallies forth to pronounce the triumph of individual rights under the Second Amendment,
but soon breaks into confusion and disarray when pressed on the scope of this new right and
finally retreats into a series of muttered exceptions that its earlier reasoning does not support”);
Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1561 (2009) (describing Heller’s
“presumptively lawful” prohibitions as a “laundry list” of Second Amendment exceptions that
the Heller Court “simply offered up with no discussion whatsoever about how these exceptions
comply with the Founders’ understanding of the right to keep and bear arms”); see also Joseph
Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L.
REV. 375, 413 (2009) (arguing that Heller’s categorical exclusion of certain types of people from
the Second Amendment’s protections “neither reflects nor enables a coherent account of the 
Amendment’s core values, whatever they may be”); Carlton F. W. Larson, Four Exceptions in
Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 HASTINGS L.J. 1371,
1372 (2008) (exploring the implications of the Heller exceptions to future regulation of the Second
Amendment); Sanford Levinson, Comment on Ruben and Blocher: Too Damn Many Cases, and
an Absent Supreme Court, 68 DUKE L.J. ONLINE 17, 29 (2018) (questioning the proper
interpretation of Heller in light of the tension between the fundamental right recognized in the
case and the limitation of that right to convicted felons).
37. See, e.g., Benjamin Levin, Guns and Drugs, 84 FORDHAM L. REV. 2173, 2219–20 (2016)
(“[T]he focal point of many gun rights advocates and gun control proponents has become an
ostensibly apolitical space of historical and textual interpretation. Rather than examining the
effects of various extant or proposed gun statutes, scholars and courts have become preoccupied
with eighteenth-century views of gun ownership.”).
38. See id. (describing and critiquing the recent shift in scholarly treatment of gun regulations
“from studies of the law in action to careful examinations of the law on the books”).
39. See infra Part II.B.
40. See infra Part II.C.
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tangible harms that § 922(g)(1) exacts on ex-felons, their family
members, and their communities. It describes three such harms in
detail.41 First, § 922(g)(1) burdens ex-felons’ reintegration into society
by effectively precluding them from living in any residence where guns
are lawfully kept. Second, the statute’s harms are not limited to exfelons
alone—the robust enforcement of the federal felon-inpossession
ban also forces nonfelons to choose between exercising
their own right to possess a firearm for self-defense and living with
loved ones who have a felony record. Third, § 922(g)(1)
disproportionately impacts and disarms communities of color.
Importantly, this Note does not mean to suggest that restricting
access to deadly firearms by individuals who pose a realistic threat to
public safety is an unworthy government interest. Rather, by
highlighting the grave harms caused by the federal felon-in-possession
ban in its current form, this Note hopes to inspire efforts to challenge
this sweeping and punitive statute that all too often re-ensnares
members of a disfavored group in the criminal justice system.
Part I reviews the Supreme Court’s landmark decision in Heller,
the case’s impact on the federal felon-in-possession ban, and lower
courts’ subsequent treatment of § 922(g)(1). Part II describes
§ 922(g)(1) and the elements that must be proved to support a
conviction. It then explains how
§ 922(g)(1)’s sweeping scope causes innocent conduct to fall within its
ambit and addresses the post-Heller constitutional dimensions of the
ban, including the less-than-compelling reasoning the Heller Court
used to justify the statute’s continued punishment of conduct that is
otherwise constitutionally protected. Part III discusses three distinct
tangible harms that § 922(g)(1) inflicts on ex-felons and their
communities. Finally, Part IV proposes solutions that may help to
mitigate the damage caused by § 922(g)(1), including recommended
statutory changes and potential constitutional challenges.
I. THE CONSTITUTIONAL RIGHT TO BEAR ARMS
Throughout most of American history, laws regulating the
possession of firearms were not a matter of constitutional concern. The
Second Amendment provides: “A well regulated Militia, being
41. See infra Part III.
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necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.”42 And this text had long been
understood to encompass only matters related to “the preservation or
efficiency of a well regulated militia.”43 Under this interpretation, the
Second Amendment thus had nothing to say about the federal felonin-
possession ban and other laws that similarly regulated private gun
use.44 As this Part explains, however, that all changed following the
Heller decision. But although Heller fundamentally transformed
Second Amendment jurisprudence, its practical effect on gun control
laws like § 922(g)(1) has been far less consequential.45 Indeed, defining
the precise contours of the Second Amendment right has been left
almost exclusively to lower courts, who in turn have uniformly upheld
the ban against challenges to its constitutionality.46 The upshot of this
doctrinal development is that tens of millions of Americans remain
categorically prohibited from exercising the Second Amendment right
that Heller extolled.47
42. U.S. CONST. amend. II.
43. United States v. Miller, 307 U.S. 174, 178 (1939). Professors Joseph Blocher & Darrell
A. H. Miller helpfully summarize the history of the militia-based interpretation of the Second
Amendment as follows:
The militia-based reading of the Amendment holds that the right to keep and bear arms
is generally limited to people, arms, and activities having some connection to the
militia. As a matter of doctrine, this view prevailed for more than two centuries,
meaning that most Second Amendment challenges were dismissed on the basis that the
person bringing the challenge had no plausible connection to a militia, let alone a wellregulated
BLOCHER & MILLER, supra note 24, at 59.
44. See, e.g., Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) (“Since [Miller], the lower
federal courts have uniformly held that the Second Amendment preserves a collective, rather
than individual, right.”); United States v. Hale, 978 F.2d 1016, 1019 (8th Cir. 1992) (“The rule
emerging from Miller is that, absent a showing that the possession of a certain weapon has ‘some
reasonable relationship to the preservation or efficiency of a well-regulated militia,’ the Second
Amendment does not guarantee the right to possess the weapon.” (quoting Miller, 307 U.S. at
178)). But see United States v. Emerson, 270 F.3d 203, 220–27 (5th Cir. 2001) (arguing that Miller’s
holding was not grounded in a militia-based interpretation of the Second Amendment).
45. See BLOCHER & MILLER, supra note 24, at 99 (“Heller’s practical impact on the scope of
gun regulation has been, and likely will continue to be, somewhat muted.”).
46. Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the
Right To Keep and Bear Arms After Heller, 67 DUKE L.J. 1433, 1481 (2018).
47. See Shannon et al., supra note 28, at 1806, 1808 (estimating that nearly twenty million
American adults have a felony conviction that would disqualify them from lawfully possessing
2021 TIME TO RELOAD 1337
A. District of Columbia v. Heller: A Turning Point
In 2002, Dick Heller, a special police officer at the Thurgood
Marshall Judiciary Center in Washington, D.C., attempted to register
a handgun that he wanted to keep at home for self-defense.48 But
District of Columbia law at the time completely barred the registration
of handguns, and his request was summarily rejected.49 Heller
subsequently filed suit to bring a Second Amendment challenge
against the District’s handgun ban.50
In a five–four decision that forever altered the constitutional
landscape, the Supreme Court held that the Second Amendment
protects an “individual right to possess and carry weapons in case of
confrontation” wholly separate from militia service.51 Because the
District’s handgun ban prevented “law-abiding, responsible citizens”
from effectively exercising this “core” Second Amendment right “to
use arms in defense of hearth and home,” the Court struck it down as
Two features of this newfound individual right to keep and bear
arms stand out. First, the Court identified self-defense as the “central
component” of the Second Amendment right, one which was itself
rooted in a natural right to self-preservation that predated the
Founding.53 Second, keeping firearms for the “core lawful purpose of
self-defense” was grounded in the home, where the “need for defense
of self, family, and property is most acute.”54
Crucially, the Heller majority stressed that the right to keep and
bear arms is not “unlimited.”55 Despite suggesting this right “belongs
to all Americans,”56 the Court qualified the Second Amendment’s
48. District of Columbia v. Heller, 554 U.S. 570, 575 (2008).
50. Id. at 575–76. For an overview of Heller’s procedural history and the characters involved
in the litigation, see BLOCHER & MILLER, supra note 24, at 66–71.
51. Heller, 554 U.S. at 592.
52. Id. at 628–30, 635.
53. Id. at 592–93, 599, 630.
54. Id. at 628, 630.
55. Id. at 626.
56. Id. at 581.
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protections by extending them only to “law-abiding, responsible
citizens.”57 The Court also made a point of emphasizing that:
[N]othing in our opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.58
Its ardent assertion of an individual right to possess firearms
notwithstanding, the Heller Court implied with a single sentence that
practically all gun control measures extant at the time—including the
federal felon-in-possession ban—were “presumptively lawful.”59
Besides determining that the District of Columbia’s handgun ban
went too far,60 the Heller Court clarified little else about the scope and
substance of the Second Amendment right.61 Relevant here, the
majority offered almost no insight into why ex-felons should be
excluded from the Second Amendment’s protections62 or how lower
57. See id. at 635 (characterizing the Second Amendment right as that of “law-abiding,
responsible citizens to use arms in defense of hearth and home”).
58. Id. at 626–27.
59. Id. at 627 n.26; see also Winkler, supra note 36, at 1561 (“So while forcefully declaring an
individual right to keep and bear arms, the [Heller] Court suggest[ed] that nearly all gun control
laws currently on the books are constitutionally permissible.”).
60. Heller, 554 U.S. at 629.
61. See, e.g., BLOCHER & MILLER, supra note 24, at 84–90 (describing the “significant
challenges, contradictions, and questions” faced by lower courts in defining the “basic building
blocks of the Second Amendment” post-Heller); Levinson, supra note 36, at 20 (claiming that “no
serious person could believe that Heller clarified very much at all” beyond invalidating the District
of Columbia’s handgun ban).
62. See Heller, 554 U.S. at 644 (Stevens, J., dissenting) (stating that “[t]he Court offer[ed] no
way to harmonize its conflicting pronouncements” regarding who the Second Amendment
protects); see also Winkler, supra note 36, at 1564 (“The Court didn’t give any substantive
explanation for why the types of laws mentioned in the laundry list [of exceptions to the Second
Amendment right] were constitutional aside from a description of them as ‘longstanding.’”).
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courts should review challenges to laws that categorically criminalize
gun possession.63 The Court left such questions for another day.64
B. The Federal Felon-In-Possession Ban Post-Heller: A Continuation
Having broken new constitutional ground, the Heller decision
prompted a wave of litigation targeting various gun control regulations
nationwide.65 In the first eight years following the decision, federal trial
and appellate courts collectively resolved over seven hundred separate
Second Amendment challenges.66 Yet the Supreme Court, in stark
contrast, has remained aloof from the gun rights debate it ignited,67
having decided only three other cases implicating the Second
Amendment since Heller.68 And none of these three cases expanded on
Heller’s reasoning or even grappled with Second Amendment doctrine
This reticence by the Court means that lower federal courts have
had near-exclusive freedom to shape Second Amendment doctrine
post-Heller.70 And while the types of challenged regulations have
63. The Heller majority explicitly rejected rational basis review and a “balancing test”
proposed by Justice Stephen Breyer in his dissent, but it otherwise did not specify the appropriate
level of scrutiny to apply to laws burdening the Second Amendment right. Id. at 628 n.27, 634–35
(majority opinion); see also United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010) (noting
that “Heller left open the level of scrutiny applicable to review a law that burdens conduct
protected under the Second Amendment”).
64. See Heller, 554 U.S. at 635 (“[T]here will be time enough to expound upon the historical
justifications for the exceptions we have mentioned if and when those exceptions come before
65. Winkler, supra note 36, at 1565–67.
66. Ruben & Blocher, supra note 46, at 1472–73.
67. See Levinson, supra note 36, at 26 (“The justices of the Supreme Court have clearly
chosen, for their own individual and unexpressed reasons, to withdraw from molding Second
68. N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525 (2020) (per curiam);
Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (per curiam); McDonald v. City of Chicago, 561
U.S. 742 (2012).
69. See N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. at 1526 (dismissing as moot a challenge to
a New York statute regarding the transportation of firearms to and from a gun owner’s home);
Caetano, 136 S. Ct. at 1027–28 (holding that stun guns, despite not being in common use at the
time of the Second Amendment’s enactment, were protected under the Second Amendment);
McDonald, 561 U.S. at 806 (plurality opinion) (incorporating the Second Amendment to the
states under the Fourteenth Amendment’s Due Process Clause).
70. See Ruben & Blocher, supra note 46, at 1455 (noting that the Second Amendment’s
“doctrinal development” has been left “primarily to the lower courts”).
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varied widely, the outcomes of these cases have not. Lower federal
courts have overwhelmingly rejected Second Amendment challenges
in favor of upholding a wide variety of gun control laws,71 rejecting
challenges in more than 90 percent of cases from 2008–2016.72
The federal felon-in-possession ban has not fared any differently.
Under the two-step inquiry that has emerged as the applicable test for
Second Amendment challenges to firearms regulations,73 federal
courts of appeals have universally held that the federal felon-inpossession
ban does not violate the Second Amendment as defined in
Heller.74 In rejecting facial challenges to § 922(g)(1)’s constitutionality,
some courts have reflexively cited Heller’s list of “presumptively lawful
regulatory measures” while saying little else to justify the categorical
exclusion of ex-felons from the Second Amendment’s protections.75
Others, like the Ninth Circuit in United States v. Vongxay,76 have held
71. See id. at 1472 (“[T]he vast majority of Second Amendment claims fail.”). A notable
exception to this general trend is the relative success rate of challenges to public carry restrictions.
Id. at 1484; see also, e.g., Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017)
(striking down a D.C. law requiring a “good reason” for concealed carry licenses as violative of
the Second Amendment).
72. Ruben & Blocher, supra note 46, at 1472.
73. See N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015) (describing
the two-part inquiry and noting at least nine other circuits that have adopted the same approach).
Under this two-step inquiry, the first question is one of coverage: Is the conduct being restricted
(e.g., owning an assault rifle) “protected by the Second Amendment in the first place?” Ezell v.
City of Chicago, 651 F.3d 684, 701 (7th Cir. 2011). If history or Heller’s list of “longstanding,”
“presumptively lawful” restrictions suggests that such conduct is excluded from the Second
Amendment’s scope, the inquiry ends, and the regulation is upheld. Id. at 701–03 (quoting District
of Columbia v. Heller, 554 U.S. 570, 626, 627 n.26 (2008)). If, however, the challenged regulation
does in fact burden conduct protected by the Second Amendment, courts then evaluate whether
the regulation “passes muster under the appropriate level of constitutional scrutiny.” Heller v.
District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011). In these cases, courts
overwhelmingly apply some form of intermediate scrutiny. See Ruben & Blocher, supra note 46,
at 1496 (finding that “[i]ntermediate scrutiny has been the most prevalent form of scrutiny”
applied to Second Amendment challenges in federal courts).
74. See Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019) (noting that “every federal court of
appeals to address the issue has held that § 922(g)(1) does not violate the Second Amendment on
its face” and collecting cases from eleven circuits).
75. See, e.g., United States v. Khami, 362 F. App’x 501, 507–08 (6th Cir. 2010) (agreeing with
other circuits that Heller’s “longstanding prohibitions” language is “sufficient to dispose of the
claim that § 922(g)(1) is unconstitutional”); United States v. McCane, 573 F.3d 1037, 1047 (10th
Cir. 2009) (disposing of a constitutional challenge to § 922(g)(1) in a single sentence by citing
Heller’s “longstanding prohibitions” language); United States v. Anderson, 559 F.3d 348, 352 n.6
(5th Cir. 2009) (same).
76. United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010).
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that the felon-in-possession ban passes constitutional muster because
it targets a group that falls outside of the Second Amendment’s
protections entirely.77 Indeed, courts have regularly defined the “core
right identified in Heller” as the “right of  law-abiding, responsible
citizen[s] to possess and carry a weapon for self-defense”78—a
definition that, by its terms, wholly excludes ex-felons. And still more
courts have indicated that the statute’s ends justify its expansive means.
In Schrader v. Holder,79 for instance, the D.C. Circuit held that the
government had “carried its burden” under the applicable level of
intermediate scrutiny by demonstrating a “substantial relationship”
between the felon-in-possession ban and the “important objective” of
While the circuit courts have uniformly held that the federal felonin-
possession ban is constitutional on its face, they are split on whether
an ex-felon can raise an as-applied challenge.81 Five circuits have
foreclosed such challenges entirely, meaning that the felon-inpossession
ban is constitutional as applied to violent and nonviolent exfelons
alike, “regardless of their individual circumstances or the nature
of their offenses.”82 Six other circuits have left open the possibility of
as-applied challenges,83 with a challenger’s success depending largely
on whether he has committed an offense “serious” enough to render
him an “unvirtuous citizen” who is beyond the Second Amendment’s
scope.84 Yet in these six circuits, only once has a court of appeals held
77. See id. at 1115 (“[F]elons are categorically different from the individuals who have a
fundamental right to bear arms . . . .”).
78. United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010); see also Medina v. Whitaker,
913 F.3d 152, 160 (D.C. Cir. 2019) (“At its core, the Amendment protects the right of ‘law-abiding,
responsible citizens to use arms in defense of hearth and home.’” (quoting Heller, 554 U.S. at
79. Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013).
80. Id. at 990; see also Kanter v. Barr, 919 F.3d 437, 448 (7th Cir. 2019) (“[T]he government
has shown that prohibiting even nonviolent felons . . . from possessing firearms is substantially
related to its interest in preventing gun violence.”).
81. For instance, in Kanter, the plaintiff claimed that his status as a nonviolent offender with
no criminal record beyond a mail fraud conviction meant that § 922(g)(1) was unconstitutional as
applied to him. 919 F.3d at 440.
82. See id. at 442 (noting that the Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits have
suggested that § 922(g)(1) is “always constitutional” as applied to ex-felons “as a class”).
83. See id. at 443 (noting that the First, Third, Fourth, Seventh, Eighth, and D.C. Circuits
“have left room for as-applied challenges” to § 922(g)(1)).
84. Holloway v. Att’y Gen., 948 F.3d 164, 171 (3d Cir. 2020).
1342 DUKE LAW JOURNAL [Vol. 70:1329
the federal felon-in-possession ban unconstitutional as applied to a
particular defendant.85 Thus, even when an as-applied challenge to
§ 922(g)(1) is available, the odds of a successful one are vanishingly
II. THE FEDERAL FELON-IN-POSSESSION BAN
While the contours of the Second Amendment right continue to
evolve, the federal felon-in-possession ban has been a stable fixture in
the federal gun control regime for over half a century. Federal law
prohibits any person who has been convicted of a crime punishable by
more than a year in prison from purchasing or possessing a firearm.86
And, as explained above, the Heller Court declared that its decision in
no way calls this statute’s constitutionality into question.
This Part focuses on the federal felon-in-possession ban itself—its
elements, its sweeping scope, and its constitutional dimensions in light
of Heller. This Part starts by explaining that § 922(g)(1), as currently
interpreted and enforced, all but ensures that anyone with a felony
conviction who possesses a gun can be easily, unconditionally, and
harshly punished. It then argues that § 922(g)(1) is poorly designed to
85. See Binderup v. Att’y Gen., 836 F.3d 336, 339–40 (3d Cir. 2016) (en banc) (holding in a
highly fractured decision that § 922(g)(1) was unconstitutional as applied to a misdemeanant who
had pleaded guilty to corrupting a minor eighteen years earlier and to another misdemeanant who
had pleaded guilty to unlawfully carrying a handgun without a license twenty-six years earlier).
Eight of the fifteen judges on the en banc Third Circuit held that § 922(g)(1) was unconstitutional
as applied to the two challengers in the case. Id. at 339, 343 (opinion of Ambro, J.); id. at 357
(Hardiman, J., concurring in part and concurring in the judgments). The other seven judges would
have rejected the as-applied challenge in the case and questioned the validity of such challenges
more generally. Id. at 407–11 (Fuentes, J., concurring in part, dissenting in part, and dissenting
from the judgments). A separate majority of eleven judges, however, concluded that the test for
whether an individual challenger could prevail with an as-applied challenge depended on the
seriousness of the challenger’s prior conviction, which determined whether the challenger was an
“unvirtuous” citizen beyond the Second Amendment’s protections. Id. at 348–49 (opinion of
Ambro, J.); id. at 387 (Fuentes, J., concurring in part, dissenting in part, and dissenting from the
judgments). The remaining five judges would have instead based the test on whether a prior
conviction was violent. Id. at 369 (Hardiman, J., concurring in part and concurring in the
86. 18 U.S.C. § 922(g)(1) (2018). Most states have a state-law equivalent of the federal felonin-
possession ban. See Who Can Have a Gun: Firearm Prohibitions, GIFFORDS L. CTR. TO
PREVENT GUN VIOLENCE [hereinafter GIFFORDS L. CTR.], https://lawcenter.giffords.org/gunlaws/
(listing federal and state laws regulating who can own firearms). This Note, however,
focuses exclusively on § 922(g)(1).
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address gun violence because the statute’s sweeping scope often results
in ex-felons being punished for conduct that is neither harmful nor
criminal and because the statute indiscriminately treats nonviolent
offenders like violent ones. The Part concludes by describing how the
felon-in-possession ban acquired constitutional significance after
Heller while also noting that the reasons courts have offered for
upholding the statute’s constitutionality post-Heller are far from
compelling as a doctrinal matter.
A. The Statute and Its Elements
The felon-in-possession ban prohibits “any person . . . who has
been convicted in any court of a crime punishable by imprisonment
for a term exceeding one year” from possessing “any firearm or
ammunition” that is “in or affecting commerce.”87 Anyone who
“knowingly” violates § 922(g)(1) can be fined, “imprisoned not more
than 10 years, or both.”88
Congress enacted the statute in its current form in 1968,89 and
federal prosecutions for weapons violations increased precipitously in
the decades that followed.90 And the felon-in-possession ban, in
particular, continues to be vigorously enforced. More than 7,600
offenders were convicted under § 922(g)(1) in fiscal year 2019, which
constituted roughly 10 percent of all federal convictions.91 Firearms
87. 18 U.S.C. § 922(g)(1).
88. Id. § 924(a)(2). This statute is a general scienter provision that applies to § 922(g) as a
whole. Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019). The government therefore must
show that a defendant “knowingly” violated each material element of § 922(g)(1) to convict that
defendant under the federal felon-in-possession ban. See id. at 2196 (“[W]e think that by
specifying that a defendant may be convicted only if he ‘knowingly violates’ § 922(g), Congress
intended to require the Government to establish that the defendant knew he violated the material
elements of § 922(g).”).
89. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 1202, 82 Stat.
197, 236; Gun Control Act of 1968, Pub. L. No. 90-618, § 301, 82 Stat. 1213, 1236. For a more
detailed history of federal gun regulations, see BLOCHER & MILLER, supra note 24, at 42–50 and
C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 HARV. J. L. & PUB. POL’Y 695,
90. Between 1980 and 1992, for instance, the number of suspects investigated and prosecuted
for federal weapons violations increased four-fold and five-fold, respectively. LAWRENCE A.
GREENFELD & MARIANNE W. ZAWITZ, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT.,
WEAPONS OFFENSES AND OFFENDERS 4 (1995), https://bjs.gov/content/pub/pdf/woofccj.pdf
91. See FY 2019 Quick Facts, supra note 16, at 1.
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offenses, moreover, are the third most common type of crime for which
offenders are convicted in the federal system, behind only immigration
and drug offenses.92 The relatively high number of § 922(g)(1)
convictions can be partly attributed to the ease of convicting a
defendant.93 The government must prove only (1) that the defendant
has a qualifying prior felony conviction; (2) that he knew of his felony
status; (3) that he knowingly possessed a firearm at some point; and (4)
that the firearm was in or affecting commerce.94 And because courts
have liberally construed each of these elements, they are usually easy
First, the government need only prove that a defendant has a prior
conviction for a state or federal “crime punishable by imprisonment for
a term exceeding one year.”96 Whether a defendant has a prior felony
conviction is undisputed in many cases, either because the defendant
stipulates as much or because a defendant’s criminal record can be
92. U.S. SENT’G COMM’N, 2018 ANNUAL REPORT AND SOURCEBOOK OF FEDERAL
STATISTICS 45 (2018) [hereinafter 2018 U.S. SENT’G COMM’N], https://www.ussc.gov/sites/default/
93. See Markus Dirk Dubber, Policing Possession: The War on Crime and the End of
Criminal Law, 91 J. CRIM. L. & CRIMINOLOGY 829, 836 (2001) (“So broad is the reach of
possession offenses, and so easy are they to detect and then to prove, that possession has replaced
vagrancy as the sweep offense of choice.”).
94. E.g., United States v. Parsons, 946 F.3d 1011, 1014 (8th Cir. 2020); United States v. Smith,
939 F.3d 612, 614 (4th Cir. 2019). Circuit courts traditionally required the government to prove
only three elements to convict under § 922(g)(1). See, e.g., United States v. Reed, 780 F.3d 260,
271 (4th Cir. 2015) (listing three elements required to prove a § 922(g)(1) violation). A fourth
element, that the defendant also know that he has a qualifying felony conviction for purposes of
§ 922(g)(1), became a requirement following the Supreme Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019). See id. at 2200 (“We conclude that in a prosecution under 18 U.S.C.
§ 922(g) . . . the Government must prove both that the defendant knew he possessed a firearm
and that he knew he belonged to the relevant category of persons barred from possessing a
95. See infra notes 111–13113, 117, 126 and accompanying text; see also U.S. DEP’T OF
JUST., CRIMINAL RESOURCE MANUAL § 112 (last updated Jan. 22, 2020), https://
perma.cc/39DM-AMXM] (“[Federal firearms violations] are generally simple and quick to
96. 18 U.S.C. § 922(g)(1) (2018). Whether a prior conviction was for a “crime punishable by
imprisonment for a term exceeding one year” for purposes of § 922(g)(1) “shall be determined in
accordance with the law of the jurisdiction in which the proceedings were held.” Id. § 921(a)(20).
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easily obtained and verified.97 Importantly, whether a prior conviction
is a qualifying predicate under § 922(g)(1) depends on whether the
crime of conviction was punishable by more than a year in prison
according to the law of the jurisdiction where the conviction was
obtained, not the actual punishment a defendant received.98 A
defendant can therefore be barred from possessing a gun for life
without spending a day in jail.99
Second, the government must prove that a defendant “knew he
belonged to the relevant category of persons barred from possessing a
firearm.”100 In other words, the defendant must know that he has
previously been convicted of an offense punishable by more than a year
in prison. Complex sentencing statutes and a large divergence between
possible and actual sentences can make it difficult for a person to know
whether a prior conviction subjects him to § 922(g)(1)’s prohibitions.
Indeed, this knowledge requirement is the most challenging of
§ 922(g)(1)’s elements to satisfy.101 Even so, establishing that a
defendant knew he was a felon is not a difficult hurdle to overcome in
most cases. A lengthy criminal record, for instance, makes it hard for a
defendant to claim ignorance of his status as a felon.102 As one court of
appeals put it bluntly, “Most people convicted of a felony know that
they are felons.”103 Thus, a defendant’s knowledge of his felon status
can often be easily inferred from proof that he has previously spent
97. See, e.g., United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019) (noting that, by
stipulating to being a convicted felon, the defendant relieved the government of its burden of
proving the defendant’s felon status).
98. E.g., United States v. Horodner, 993 F.2d 191, 194 (9th Cir. 1993).
99. See, e.g., Schrader v. Holder, 704 F.3d 980, 982 (D.C. Cir. 2013) (affirming the application
of § 922(g)(1) to an individual who served no jail time for his misdemeanor assault conviction).
100. Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). The court noted that a defendant
who is unaware that his status disqualifies him from possessing a firearm under § 922(g) “may
well lack the intent needed to make his behavior wrongful.” Id. at 2197.
101. See, e.g., United States v. Davies, 942 F.3d 871, 874 (8th Cir. 2019) (vacating a § 922(g)(1)
conviction after concluding that the government failed to show that a defendant knew that he had
been formally “convicted” under Iowa law at the time of his firearm possession). Rehaif has also
complicated § 922(g)(1) convictions that were secured before the case announced this knowledge
requirement. See, e.g., United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019) (vacating a guilty plea
regarding a § 922(g) violation after holding that “the failure of the district court to advise [the
defendant] that the government would need to establish beyond a reasonable doubt at trial that
he knew that he was illegally present in the United States” amounted to plain error).
102. See United States v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020) (“[S]omeone who has
been convicted of felonies repeatedly is especially likely to know he is a felon.”).
1346 DUKE LAW JOURNAL [Vol. 70:1329
more than a year in prison104 or has been convicted of a crime that is
unequivocally recognized as a felony offense.105
Third, the government must prove that a defendant (i) possessed
at some point (ii) what he knew to be a firearm. The statutory
definition of “firearm” is expansive,106 encompassing unloaded107 and
even inoperable weapons.108 And § 922(g)(1) prohibits ex-felons from
possessing ammunition as well.109 In one Sixth Circuit case, for
instance, the court upheld a fifteen-year mandatory sentence under the
Armed Career Criminal Act (“ACCA”) for a § 922(g)(1) conviction
that resulted from a consent search of an ex-felon’s home in which
police uncovered in a drawer seven shotgun shells that a neighbor had
given to the defendant.110
Regarding the second subpart of the third element, what
constitutes “possession” of a firearm under § 922(g)(1) is similarly
sweeping—courts have interpreted the statute to prohibit “possession
in every form,” including both actual and constructive possession.111
Actual possession cases are straightforward—the government simply
must prove that a defendant carried or physically controlled a firearm
104. See, e.g., United States v. Dowthard, 948 F.3d 814, 818 (7th Cir. 2020) (observing that a
lengthy prison sentence for a prior conviction “severely hamper[s] an assertion” by a defendant
that he was “ignorant” of his status as someone who had been convicted of a crime punishable by
more than a year of imprisonment).
105. See, e.g., United States v. Burghardt, 939 F.3d 397, 404 (1st Cir. 2019) (inferring that a
defendant was well aware of his felon status based on his prior convictions for drug and robbery
offenses, which were “punishable by a term of imprisonment well beyond a year”).
106. Under federal law, a “firearm” is defined in relevant part as “any weapon (including a
starter gun) which will or is designed to or may readily be converted to expel a projectile by the
action of an explosive.” 18 U.S.C. § 921(a)(3)(A) (2018).
107. See United States v. Matthews, 520 F.3d 806, 810 (7th Cir. 2008) (“[T]he cases that we
have found strongly suggest that the other courts of appeals also would reject [defendant’s]
arguments . . . that momentary possession of an unloaded weapon does not violate section
108. See United States v. Rivera, 415 F.3d 284, 286 (2d Cir. 2005) (concluding that inoperable
weapons fall within the federal definition of “firearm” and collecting cases holding the same).
109. See 18 U.S.C. § 922(g)(1) (making it unlawful for a convicted felon to possess “any
firearm or ammunition”); see also id. § 921(a)(17)(A) (“The term ‘ammunition’ means
ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any
110. See United States v. Young, 766 F.3d 621, 623, 628 (6th Cir. 2014) (per curiam) (holding
that a fifteen-year ACCA mandatory minimum sentence for “innocently acquiring and knowingly
continuing to possess ammunition” in violation of § 922(g)(1) was not unconstitutionally
111. Henderson v. United States, 135 S. Ct. 1780, 1784 (2015).
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at some point in time.112 Even a photo showing a defendant holding a
handgun can show actual possession.113 And a defendant’s motive for
possessing a firearm is irrelevant, as is the duration of possession.114 In
short, if an ex-felon is found with a gun or there is evidence that he
once carried a gun, this possession element is almost certainly
Absent actual possession, a defendant can still be convicted for
constructively possessing a firearm.116 The government need only
establish that an ex-felon had the ability to exercise dominion and
control over a firearm, irrespective of whether he ever wields the
weapon at any point or whether it formally belongs to someone else.117
For instance, finding a gun in an ex-felon’s residence is usually
sufficient to permit the inference that, by virtue of his control of the
112. See, e.g., United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007) (“Actual possession
requires that the defendant have ‘immediate possession or control’ of the firearm.”); see also
United States v. Caldwell, 760 F.3d 267, 279 (3d Cir. 2014) (“[A]bsent unusual
circumstances . . . the knowledge element in a felon-in-possession case will necessarily be satisfied
if the jury finds the defendant physically possessed the firearm.”).
113. See United States v. Farrad, 895 F.3d 859, 864 (6th Cir. 2018) (affirming a § 922(g)(1)
conviction where the government relied primarily on Facebook photos portraying the defendant
holding what appeared to be guns).
114. See, e.g., United States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005) (“The statute in no
way invites investigation into why the defendant possessed a firearm or how long that possession
115. See United States v. Johnson, 459 F.3d 990, 998 (9th Cir. 2006) (describing federal
firearms laws, including § 922(g)(1), as “something approaching absolute liability” (citing United
States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983))). In certain narrow circumstances, an ex-felon
can assert “a justification defense” for otherwise unlawful possession of a firearm if such
possession was needed to avoid an “unlawful and present threat of death or serious bodily injury.”
See United States v. Gomez, 92 F.3d 770, 775, 778 (1996) (excusing the possession of a shotgun
for self-defense by an ex-felon who received multiple death threats for cooperating with the
federal government). Notably, the Gomez court suggested that § 922(g)(1) “might not pass
constitutional muster” if such a justification defense was deemed unavailable because
criminalizing an ex-felon’s possession of a firearm when his life is in imminent danger would
“collide” with what the court described as a Second Amendment right “to defend oneself and
one’s home against physical attack.” Id. at 774 n.7. This articulation of an individual Second
Amendment right to self-defense preceded Heller by more than a decade.
116. Henderson, 135 S. Ct. at 1784.
117. See, e.g., United States v. Morales, 893 F.3d 1360, 1371 (11th Cir. 2018) (stating that a
defendant could be convicted under § 922(g)(1) “if he was aware of [a] gun’s presence and had
the ability and intent to exercise dominion and control over it then or later”).
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premises, he constructively possessed the gun as well.118 Similarly, an
ex-felon can constructively possess a firearm found in a car that he is
driving even if the weapon is concealed and out of reach.119
When an ex-felon shares a living space, proximity to a gun or the
ex-felon’s presence in a residence with a weapon is typically not enough
to establish constructive possession. The government must provide
additional evidence of a connection between the defendant and the
firearm at issue.120 But the constructive possession inquiry is fact bound
and hence largely unpredictable. Consequently, any circumstantial
evidence linking an ex-felon to a firearm—being a frequent guest in a
home where a firearm is seized,121 keeping personal belongings in the
same room as a firearm,122 sleeping near a nightstand where a spouse
keeps a handgun,123 or having easy access to a shared closet where guns
are stored124—might support a finding of constructive possession. The
only guaranteed way for an ex-felon to avoid exposure to considerable
criminal liability is to remove firearms from his home entirely.
Finally, the fourth element is jurisdictional: to support federal
jurisdiction, the firearm must have some nexus with interstate
commerce.125 Courts have also construed this element liberally,
requiring only that a firearm have traveled in interstate commerce at
some time in the past.126 And given that practically all firearms move
118. See, e.g., United States v. Shorter, 328 F.3d 167, 172 (4th Cir. 2003) (“[T]he fact that the
firearms . . . were found in [the defendant’s] home permits an inference of constructive
119. See, e.g., United States v. Norman, 388 F.3d 1337, 1341–42 (10th Cir. 2004) (confirming
that a defendant could constructively possess a gun found in a locked glove compartment in his
120. See, e.g., United States v. Ramos, 852 F.3d 747, 754 (8th Cir. 2017) (requiring proof of a
“link”); United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012) (requiring proof of a
“nexus . . . connect[ing] the defendant to the contraband”).
121. United States v. Johnson, 474 F.3d 1044, 1049 (8th Cir. 2007).
122. United States v. Benford, 875 F.3d 1007, 1015 (10th Cir. 2017); United States v. Kitchen,
57 F.3d 516, 520–21 (7th Cir. 1995).
123. United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001); see also United States v.
Boykin, 986 F.2d 270, 274 (8th Cir. 1993) (concluding that a defendant constructively possessed
firearms found in a bedroom that he shared with his wife).
124. United States v. Denson, 775 F.3d 1214, 1220 (10th Cir. 2014).
125. See 18 U.S.C. § 922(g) (2018) (requiring that firearm possession be “in or affecting
commerce”); United States v. Singletary, 268 F.3d 196, 199 (3d Cir. 2001) (acknowledging that
Congress enacted the felon-in-possession ban pursuant to its Commerce Clause authority).
126. Singletary, 268 F.3d at 200.
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across states lines at some point between their manufacture and
ultimate sale, this element is rarely disputed.127
Once the government secures a conviction, the consequences
faced by a defendant can be severe. Federal law provides for a
maximum sentence of ten years for a § 922(g)(1) violation,128 with the
average sentence for a felon-in-possession offender exceeding five
years.129 The ACCA,130 moreover, requires a fifteen-year mandatory
minimum sentence when an offender convicted under § 922(g)(1) has
three previous convictions for a violent felony or serious drug crime.131
Even defendants with prior convictions for relatively low-level offenses
can face a year or two in prison for a single incident of unlawful firearm
In sum, § 922(g)(1) convictions carry harsh sentences, and courts’
liberal interpretations of the statute’s already-broad language make
such convictions easy to secure. Given the felon-in-possession ban’s
worthy purpose of reducing gun violence, its far-reaching scope is no
doubt deliberate.133 But this breadth also comes with severe
consequences for ex-felons. By allowing convictions to be based on a
largely immutable factor (felony status) in combination with easily
verifiable ones (simple possession of a firearm), the statute ensures that
enforcement is near effortless,134 making it that much easier for
127. See, e.g., United States v. Harris, 394 F.3d 543, 551 (7th Cir. 2005) (confirming that a
gun’s manufacture in another state is an adequate “interstate connection” for purposes of
128. 18 U.S.C. § 924(a)(2).
129. FY 2019 Quick Facts, supra note 16, at 2.
130. Armed Career Criminal Act of 1984, Pub. L. No. 98-473, § 1005, 98 Stat. 1837, 2138.
131. 18 U.S.C. § 924(e).
132. See U.S. SENT’G COMM’N, GUIDELINES MANUAL § 2K2.1(a)(6) (2018). The lowest base
offense level for an ex-felon who violates § 922(g)(1) is fourteen, id., which would still result in a
recommended sentence of fifteen to twenty-one months for a defendant in the lowest criminal
history category, id. at ch. 5, pt. A.
133. Levin, supra note 37, at 2205 (“Possessory offenses do not address harm directly; rather,
they target risks that might ultimately grow into harms. They are a proxy for past, future, or
134. See Dubber, supra note 93, at 859 (“In many cases, possession statutes also save
prosecutors the trouble of proving that other major ingredient of criminal liability in American
criminal law, mens rea, or a guilty mind.”).
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prosecutors to facilitate the reentry of ex-felons into the carceral
B. The Federal Felon-In-Possession Ban’s Sweeping Scope
As explained above, the federal felon-in-possession ban punishes
firearm possession by ex-felons swiftly and harshly, and its reach is
expansive by design. The statute’s sweeping scope might be justified if
it served an especially important government interest. Indeed, the
“broad objective” of § 922(g)(1) is to “keep guns out of the hands of
presumptively risky people,”136 and there is no doubt that such an
interest in preventing crime and gun violence is compelling by any
metric.137 Yet whether the felon-in-possession ban actually advances
this interest—and whether, by extension, the ban’s expansive reach is
necessary and therefore defensible—is highly debatable.
Start with the fact that § 922(g)(1) punishes any and all firearm
possession by ex-felons, irrespective of whether a crime occurs or is
even likely to occur. As explained above, a § 922(g)(1) conviction is
predicated on possession without regard to motive, so whether an exfelon’s
firearm possession is associated with any sort of harmful
behavior worth deterring is irrelevant to § 922(g)(1)’s enforcement.138
Consequently, because of how § 922(g)(1) is written, courts do not
consider whether an ex-felon actually intended to use a firearm for any
criminal purpose. Instead, they focus almost exclusively on other
considerations that are not obviously related to gun violence, such as
whether there is a sufficient “nexus” between the defendant and a gun
to establish constructive possession.139 To be sure, possessing a firearm
is an essential first step in any course of action that may ultimately
result in a dangerous use of that firearm. And in certain cases,
§ 922(g)(1) arguably preempts such harm by allowing an ex-felon in
135. See id. (“Possession has become the paradigmatic offense in the current campaign to
stamp out crime by incapacitating as many criminals as we can get our hands on.”).
136. United States v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010).
137. Id. at 684; Schrader v. Holder, 704 F.3d 980, 989–90 (D.C. Cir. 2013).
138. See, e.g., United States v. Teemer, 394 F.3d 59, 64 (1st Cir. 2005) (noting that § 922(g)(1)
“bans possession outright without regard to how great a danger exists of misuse in the particular
139. See, e.g., United States v. Davis, 896 F.3d 784, 790–91 (7th Cir. 2018) (discussing, among
other things, whether a defendant was the head of a household and therefore constructively
possessed a revolver found in a shared residence).
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possession of a gun to be incapacitated before criminal behavior
materializes.140 Yet the fact that the statute preempts gun violence in
certain cases does not mean that it does so in all or even most cases.141
Nor does it change the inescapable fact that the likelihood of an armed
ex-felon putting others in harm’s way or of an ex-felon having any
intention of harming others is simply not an element of the § 922(g)(1)
The upshot of § 922(g)(1)’s sweeping scope, of course, is that the
statute often targets conduct that is nonviolent and unrelated to
criminal activity. For instance, nearly all of the federal courts of appeals
have rejected an “innocent transitory possession” defense to a
§ 922(g)(1) charge.143 Defendants have tried to raise this defense in
cases where an ex-felon allegedly stumbled upon a firearm and then
briefly possessed it solely for the innocent purpose of safely turning the
weapon over to police.144 But courts have consistently held that an exfelon’s
motive for possessing a firearm, even if wholly devoid of illicit
intent, is irrelevant under § 922(g)(1).145 Thus, the result in such cases
is that an ex-felon is re-incarcerated, likely for several years, for
conduct that in no way jeopardized public safety. In short, under
§ 922(g)(1), possession of a firearm and possession alone is what
matters, regardless of whether harm is imminent or likely. And without
a consideration of harm, § 922(g)(1) convictions seem disconnected
with the statute’s purpose of preventing gun violence.
The federal felon-in-possession ban is disconnected from its
ostensible purpose for a second reason: it punishes firearm possession
by violent and nonviolent offenders equally.146 Some argue that this is
necessary to ensure that lethal firearms are wielded only by “law-
140. See supra note 133.
141. See, e.g., Davis, 896 F.3d at 791(involving a § 922(g)(1) conviction where the firearms at
issue were never wielded by the defendant).
142. See supra Part II.A.
143. See United States v. Vereen, 920 F.3d 1300, 1309 (11th Cir. 2019) (noting that the
“overwhelming majority” of circuits have rejected a temporary innocent possession defense to a
§ 922(g)(1) charge and collecting cases).
144. E.g., United States v. Mason, 233 F.3d 619, 625 (D.C. Cir. 2000).
145. See Vereen, 920 F.3d at 1308 (“[T]he defendant’s motive or purpose behind his possession
[of a firearm] is irrelevant.”).
146. See, e.g., United States v. Pruess, 703 F.3d 242, 247 (4th Cir. 2012) (affirming the
application of § 922(g)(1) to a nonviolent felon).
1352 DUKE LAW JOURNAL [Vol. 70:1329
abiding, responsible citizen[s]”147 rather than “presumptively risky
people.”148 And a felony record of any sort, the argument goes, is useful
in distinguishing the former from the latter.149 But, as a predictor of an
individual’s violent tendencies or his risk to the public, the felon label
is patently overinclusive. Indeed, the term “felony” is regularly applied
to a wide array of nonviolent conduct. This includes, for example, mail
fraud150 or marijuana possession,151 offenses that seemingly have little
bearing on one’s ability to be a responsible gun owner.152 And as the
list of felonies in state and federal criminal codes continues to grow,153
the range of nonviolent conduct that can potentially disqualify the
average citizen from ever possessing a firearm under § 922(g)(1) has
expanded in equal measure.
Given the expansive definition of what amounts to a felony, there
is little reason then for a statute targeting violent crime to treat all exfelons
unconditionally. To the contrary, there are significant
differences between nonviolent offenders and those who have been
convicted of violent crimes—or at least enough differences to render
147. United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (quoting United States v.
Chester, 628 F.3d 673, 683 (4th Cir. 2010)).
148. United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010).
149. See, e.g., Kanter v. Barr, 919 F.3d 437, 448 (7th Cir. 2019) (“The government identifies
its interest [in enforcing § 922(g)(1)] as preventing gun violence by keeping firearms away from
persons, such as those convicted of serious crimes, who might be expected to misuse them.”).
150. See Hatfield v. Barr, 925 F.3d 950, 951, 953 (7th Cir. 2019) (affirming the application of
§ 922(g)(1)’s lifetime bar on firearm possession to a defendant previously convicted of mail
151. See 21 U.S.C. § 844(a) (2018) (providing that a person with a prior drug possession
conviction who knowingly possesses a controlled substance can be sentenced to up to two years
152. See Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and
Criminological Considerations, 60 HASTINGS L.J. 1339, 1363 (2008) (describing as “absurd” the
“claim that income tax evasion, antitrust law violations, or . . . calling George W. Bush a jackass
should disqualify anyone from owning a firearm”).
153. See Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting) (“With the law
books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least
a technical violation of some act on the part of almost anyone.”); cf. Gary Fields & John R.
Emshwiller, Many Failed Efforts To Count Nation’s Federal Criminal Laws, WALL ST. J. (July 23,
2011), https://www.wsj.com/articles/SB10001424052702304319804576389601079728920 [https://
perma.cc/C6TQ-L9H5] (noting the Justice Department’s 1982 attempt to count the total number
of federal crimes which “produced only an educated estimate” of “about 3,000 criminal
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the blanket disarmament of all ex-felons unwarranted.154 Compared to
violent offenders in the federal system, for instance, nonviolent
offenders are considerably less likely to recidivate, and when they do,
they are rearrested for less serious offenses.155 It simply challenges
common sense to suggest that the public is equally threatened by an
armed ex-felon with a history of violent behavior as it is by someone
whose criminal record is limited to falsifying income on a mortgage
A final argument that could be made to support § 922(g)(1)’s
sweeping scope is that, rather than targeting the dangerous use of
firearms, the statute is instead meant to reserve gun ownership
exclusively to “law-abiding, responsible citizens”—that is, those
citizens who have committed no crimes at all, whether violent or
otherwise.157 If this were true, however, § 922(g)(1) is blatantly
underinclusive on this front by its own terms. Although § 922(g)(1)
applies to anyone who has been convicted of a crime “punishable by
imprisonment for a term exceeding one year,”158 any previous
convictions “pertaining to antitrust violations, unfair trade practices,
restraints of trade, or other similar offenses relating to the regulation
of business practices” are specifically excluded from the statute’s
ambit.159 As other scholars acknowledge, there is no principled
explanation for this “business practices” exception.160 Arguing that
154. See, e.g., United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010) (“[Section] 922(g)(1)
may be subject to an overbreadth challenge at some point because of its disqualification of all
felons, including those who are non-violent.”).
155. See U.S. SENT’G COMM’N, RECIDIVISM AMONG FEDERAL VIOLENT OFFENDERS 3, 8
2019/20190124_Recidivism_Violence.pdf [https://perma.cc/P2KL-LWPS] (finding that among the
more than 25,000 federal offenders released from prison in 2005, violent offenders recidivated at a
rate of 63.8 percent while nonviolent offenders recidivated at a rate of 39.8 percent).
156. Medina v. Whitaker, 913 F.3d 152, 154 (D.C. Cir. 2019) (rejecting a Second Amendment
challenge to § 922(g)(1) by a plaintiff who was prohibited from owning a firearm for life based on
a prior felony conviction for “falsifying his income on mortgage applications twenty-seven years
157. Indeed, such an interpretation of § 922(g)(1) would align with lower courts’
interpretation of Heller as restricting the Second Amendment right to such citizens. E.g., United
States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010).
158. 18 U.S.C. § 922(g)(1) (2018).
159. Id. § 921(a)(20)(A).
160. See, e.g., Levinson, supra note 36, at 28 (“Is lying to the F.B.I. about insider trading [like
Martha Stewart] really more of a threat to the republic than the ‘business practices’ exempted
from coverage by § 921(a)(20)(A)?”).
1354 DUKE LAW JOURNAL [Vol. 70:1329
perpetrators of these serious offenses161 are somehow more “lawabiding”
or “responsible” than other convicted felons borders on the
frivolous. And if one instead rationalizes the business practices
exception as “reduc[ing] unnecessary restrictions” on gun ownership
for certain white-collar felons who do not exhibit “dangerous
tendencies,”162 one must wonder what makes those convicted of
nonviolent crimes unrelated to business practices more dangerous.163
At bottom, § 922(g)(1)’s expansive reach and punitive nature are
often defended as essential to advancing the government’s interest in
reducing gun violence. But given how the statute regularly punishes
conduct unrelated to criminal activity, needlessly treats nonviolent
offenders the same as violent ones, and imposes a lifetime ban on
firearm possession on some lawbreakers but not others, it is time for
this sweeping and “longstanding prohibition”164 to be reevaluated.
C. The Federal Felon-In-Possession Ban’s Constitutional Dimension
and Doctrinal Shortcomings
Whatever could have been said about the felon-in-possession
ban’s sweeping scope before Heller, no one at the time could have
challenged its constitutionality for the simple reason that courts had
routinely held that nobody, felon or otherwise, was constitutionally
entitled to possess a firearm in any capacity.165 But Heller’s recognition
of an individual Second Amendment right to “keep and bear Arms”
gave § 922(g)(1) an added constitutional dimension. In addition to
being expansive, punitive, and robustly enforced,166 the felon-inpossession
ban now, in effect, permanently prohibits a sizable number
of Americans from engaging in conduct that is otherwise
161. See, e.g., 15 U.S.C. § 1 (2018) (making “[e]very contract . . . or conspiracy, in restraint of
trade” a felony punishable by up to ten years in prison).
162. United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998).
163. See, e.g., United States v. Coleman, 609 F.3d 699, 706 (5th Cir. 2010) (holding that a prior
conviction for conspiracy to infringe a copyright does not fall within the business practices
exception); United States v. Stanko, 491 F.3d 408, 419 (8th Cir. 2007) (holding that a prior
conviction for violating the Federal Meat Inspection Act likewise falls outside the exception).
164. District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
165. See supra note 43 and accompanying text (describing the militia-based interpretation of
the Second Amendment that predated Heller).
166. See supra Parts II.A–B.
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The irony, of course, is that although the Heller Court held that
the Second Amendment protects an individual right to keep and bear
arms for the purpose of self-defense in the home,167 this is precisely the
sort of conduct that § 922(g)(1) criminalizes. For one, courts have made
it clear that an ex-felon’s reason for possessing a firearm is irrelevant
for purposes of the federal felon-in-possession ban,168 meaning that a
defendant can be convicted under § 922(g)(1) “even if [he] possesses a
firearm purely for self-defense.”169 Moreover, under § 922(g)(1), the
mere presence of firearms in an ex-felon’s residence is effectively
verboten.170 In short then, the statute’s prohibition on firearm
possession extends directly into an ex-felon’s home, where the right to
keep and bear arms is most protected.171
Despite the felon-in-possession ban’s seeming incompatibility
with Heller’s central holding, however, circuit courts have routinely
upheld its constitutionality post-Heller.172 And yet, as several scholars
note, the reasons these courts commonly give to justify the continued
exclusion of ex-felons from the Second Amendment’s protections are
far from satisfying as a doctrinal matter.173 Some courts, for instance,
have upheld § 922(g)(1) by simply citing to the Heller majority’s carve
out for “longstanding prohibitions on the possession of firearms by
felons.”174 But this language was likely dicta,175 and the Court did not
cite any laws, cases, or secondary materials to support this
proposition.176 Other courts have concluded that § 922(g)(1) is
167. Heller, 554 U.S. at 635.
168. E.g., United States v. Vereen, 920 F.3d 1300, 1308 (11th Cir. 2019).
169. United States v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010).
170. See supra Part II.A (explaining that seizing a firearm in an ex-felon’s residence is usually
sufficient to a support a § 922(g)(1) conviction under a theory of constructive possession).
171. See Heller, 554 U.S. at 628 (stating that the need for self-defense is “most acute” in the
172. See supra Part I.B.
173. See supra note 36 and accompanying text.
174. Heller, 554 U.S. at 626.
175. See, e.g., Winkler, supra note 36, at 1567 (“After all, the laundry list [of exceptions] is
offered up in the Heller opinion without any reasoning or explanation. Moreover, none of the
exceptions were formally at issue in Heller . . . . The laundry list was, in a first-year law student’s
favorite word, dicta.”). But see, e.g., United States v. Huet, 665 F.3d 588, 600 n.11 (3d Cir. 2012)
(asserting that Heller’s list of “presumptively lawful” firearm regulations “was not dicta” and
instead was a limit on Heller’s holding that was binding on lower courts).
176. Winkler, supra note 36, at 1567; see also Larson, supra note 36, at 1372 (“The Court
offered no citations to support this statement, and its ad hoc, patchy quality has been readily
1356 DUKE LAW JOURNAL [Vol. 70:1329
sufficiently tailored to advance the government’s interest in preventing
crime and gun violence. 177 Yet, as explained above, such a claim is
dubious at best given the statute’s sweeping scope.178
That leaves courts’ reliance on Heller’s language about the Second
Amendment’s protections extending only to “law-abiding, responsible
citizens,”179 which has since become a key limit on the scope of the
“core” Second Amendment right.180 Courts have regularly reasoned, in
other words, that the individual right to keep and bear arms is reserved
only for upstanding citizens, and because ex-felons are decidedly not
part of that group,181 the felon-in-possession ban raises few if any
constitutional concerns. But this “law-abiding, responsible citizens”
limit is also doctrinally problematic on at least three fronts.182
First, the exclusion of ex-felons from the Second Amendment’s
ambit cannot be derived from the constitutional text. In fact, the text
supports the opposite conclusion, something which the Heller majority
itself went a long way to illustrate. The Court insisted, for instance, that
“the people” referred to in the Second Amendment were identical to
“the people” protected by the First, Fourth, and Ninth Amendments.183
And these “people,” according to the Court, “unambiguously”
apparent to commentators . . . . More cuttingly, Justice Breyer suggested that these exceptions
amounted to little more than ‘judicial ipse dixit.’”).
177. Schrader v. Holder, 704 F.3d 980, 990 (D.C. Cir. 2013).
178. See supra Part II.B.
179. Heller, 554 U.S. at 635.
180. See, e.g., Binderup v. Att’y Gen., 836 F.3d 336, 349 (3d Cir. 2016) (en banc) (opinion of
Ambro, J.) (concluding that criminal offenders can be denied the right to bear arms because they
are “unvirtuous” for having committed “serious crimes”); United States v. Chester, 628 F.3d 673,
683 (4th Cir. 2010) (defining the “core right identified in Heller” as the “right of a law-abiding,
responsible citizen to possess and carry a weapon for self-defense”).
181. See, e.g., United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (“[The defendant]
simply does not fall within the category of citizens to which the Heller court ascribed the Second
Amendment protection of ‘the right of law-abiding responsible citizens to use arms in defense of
hearth and home.’”).
182. Some scholars have suggested that the Heller Court adopted this limit on the Second
Amendment right not because of any underlying constitutional principles but rather to avoid
having to make the controversial move of invalidating the federal felon-in-possession ban and
other gun restrictions like it. See, e.g., Larson, supra note 36, at 1372 (acknowledging
commentators’ speculation that Heller’s endorsement of various “longstanding” gun regulations
was “compromise language” intended to secure a fifth vote); Winkler, supra note 36, at 1561 (“In
constitutional law, a right is supposed to define the scope of contemporary government
regulation. In the Heller world . . . contemporary regulation defines the scope of the right.”).
183. Heller, 554 U.S. at 579–80.
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included “all members of the political community, not an unspecified
Second, the Heller Court’s characterization of prohibitions on
firearm possession by felons as “longstanding”—and thus presumably
constitutional—is likely wrong as a historical matter.185 The federal
felon-in-possession ban is a modern creation.186 The first major federal
restrictions on firearm use by ex-felons, which targeted individuals
convicted of a “crime of violence,” were enacted only in 1938.187 And
prohibitions on simple possession of firearms were first implemented
and imposed on both violent and nonviolent ex-felons in 1968.188 At the
very least, the historical support for limiting the Second Amendment
right to virtuous citizens alone is by no means as conclusive as Heller
Third, the “law-abiding, responsible citizens” limit is hard to
reconcile with what the Heller Court identified as the “central
component” of the Second Amendment right—the right to selfdefense
in case of confrontation.190 The Heller majority claimed that
the Second Amendment merely codified a preexisting “natural right”
of self-preservation that was—and surely still is—available to
184. Id. at 580 (emphasis added).
185. See Larson, supra note 36, at 1372 (“The Heller exceptions lack the historical grounding
that would normally justify an exception to a significant constitutional right. Whatever the Court
is doing here, it is not rigorously grounded in eighteenth-century sources.”); Marshall, supra note
89, at 700–08 (2009) (describing the advent of restrictions on firearm possession by convicted
felons in the 1920s and asserting that “a lifetime ban on any felon possessing any firearm is not
‘longstanding’ in America”); Winkler, supra note 36, at 1561 (“[Heller’s] ‘laundry list’ of Second
Amendment exceptions is simply offered up with no discussion whatsoever about how these
exceptions comply with the Founders’ understanding of the right to keep and bear arms. Heller
does not cite a single historical source to support these exceptions. Not one.”).
186. Marshall, supra note 89, at 698 (“The federal ‘felon’ disability . . . is less than fifty years
old.”). Marshall also notes “with a good degree of confidence” that state law bans on ex-felons or
convicts possessing firearms were “unknown before World War I.” Id. at 708.
187. Federal Firearms Act, Pub. L. No. 75-785, § 1(6), 52 Stat. 1250, 1250 (1938); id. § 2(f), 52
Stat. at 1251.
188. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 1202, 82 Stat.
197, 236; Gun Control Act of 1968, Pub. L. No. 90-618, § 301, 82 Stat. 1213, 1236.
189. See, e.g., United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (en banc) (Sykes, J.,
dissenting) (noting that scholars “disagree about the extent to which felons . . . were considered
excluded from the right to bear arms during the founding era” and that “[t]he historical evidence
is inconclusive at best”).
190. District of Columbia v. Heller, 554 U.S. 570, 592, 599 (2008).
1358 DUKE LAW JOURNAL [Vol. 70:1329
everyone.191 Yet various commentators point out that it is difficult to
fathom why ex-felons “don’t . . . have the same right of self-defense as
everyone else.”192 In short, a “natural right” of seemingly universal
application purportedly undergirds the Second Amendment’s
protections, but Heller affords this “natural right” only to an exclusive
subset of citizens. This surely qualifies as another one of the Heller
majority’s “conflicting pronouncements” that Justice John Paul
Stevens underscored in his dissent.193
In short, Heller, in some sense, was doubly damaging to ex-felons
who were already subject to a felon-in-possession ban that was harsh
and punitive in its own right. Not only did the Heller opinion elevate to
constitutional status the very conduct—possessing a firearm for selfdefense
in the home—that the felon-in-possession ban criminalizes,
categorically excluding ex-felons from the Second Amendment’s
protections in the process. It also built this categorical exclusion on a
doctrinal foundation that is both unorthodox194 and unpersuasive.
Thus, although § 922(g)(1)’s constitutionality post-Heller is wellsettled,
195 courts have reached this conclusion only by more or less
writing ex-felons out of the Constitution.
III. THE FELON-IN-POSSESSION BAN’S TANGIBLE HARMS
Scholarship post-Heller roundly criticizes the decision’s reasoning.
Yet emerging academic debates largely focus on abstract disputes
about the history and text of the Second Amendment rather than facts
on the ground, where the felon-in-possession ban continues to be
191. Id. at 594; see also McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (“Self-defense
is a basic right, recognized by many legal systems from ancient times to the present day.”).
192. Winkler, supra note 36, at 1568; see also, e.g., Blocher, supra note 36, at 426 (“Felons, in
particular, are likely to move in circles where self-defense is an imperative.”); Levinson, supra
note 36, at 27–29 (noting that if there is a constitutional right “to defend [oneself] against potential
sources of physical harm, then Martha Stewart—and millions of other non-violent criminals—
have done nothing that should lead us to strip them of their right”).
193. Heller, 554 U.S. at 644 (Stevens, J., dissenting).
194. See Winkler, supra note 36, at 1563 (“In modern constitutional law, rights are not
selectively doled out by legislatures to those whom elected officials deem to be sufficiently
virtuous or worthy.”).
195. See Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019) (observing that “every federal court
of appeals to address the issue has held that § 922(g)(1) does not violate the Second Amendment
on its face”).
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enforced unabated.196 This Part departs from those debates by taking a
more practical approach. Namely, it addresses the tangible impacts of
§ 922(g)(1)’s criminalization of gun possession by ex-felons. In
particular, it describes three distinct harms that the statute inflicts upon
ex-felons and their communities: first, the extent to which § 922(g)(1)
burdens ex-felons’ reintegration into society; second, the chilling effect
the statute has on nonfelons’ exercise of their own Second Amendment
rights; and finally, the disproportionate burden § 922(g)(1) imposes on
communities of color.
A Burdening Ex-Felons’ Reintegration into Society
Section 922(g)(1)’s harms are not limited to criminal convictions
and extended incarceration alone.197 By effectively barring ex-felons
from living in any residence where firearms are lawfully kept, the
statute also needlessly complicates their reintegration into society
following their release from prison.
Securing stable housing as a formerly incarcerated person is
difficult in the first place. Landlords routinely refuse to rent to tenants
with criminal records.198 State and local public housing authorities have
broad discretion to deny housing assistance to individuals because of
their criminal history or past involvement with drug-related
activities.199 In certain cities, a prior criminal conviction can be grounds
for a multiyear ban from federally assisted public housing.200 Even if
landlords were willing to overlook criminal records, a combination of
bleak employment prospects201 and a nationwide shortage of
196. See supra note 37 and accompanying text.
197. See supra Part I.A.
198. See, e.g., Mireya Navarro, Federal Housing Officials Warn Against Blanket Bans of Ex-
Offenders, N.Y. TIMES (Apr. 4, 2016), https://nyti.ms/1ZY1CIl [https://perma.cc/U8B6-GY5N].
199. See, e.g., 42 U.S.C. § 13661(c) (2018) (allowing public housing authorities to deny federal
housing benefits to applicants based on their criminal history); see also Marah A. Curtis, Sarah
Garlington & Lisa S. Schottenfeld, Alcohol, Drug, and Criminal History Restrictions in Public
Housing, 15 CITYSCAPE: J. POL’Y DEV. & RSCH. 37, 39–40 (2013).
200. See Curtis et al., supra note 199, at 43–44.
201. See, e.g., Binyamin Appelbaum, Out of Trouble, But Criminal Records Keep Men Out of
Work, N.Y. TIMES (Feb. 28, 2015), https://nyti.ms/1C8KVBq [https://perma.cc/E8XK-TGHH]
(noting that men with criminal records account for more than one-third of all nonworking men
ages twenty-five to fifty-four and describing the various employment barriers faced by ex-felons).
1360 DUKE LAW JOURNAL [Vol. 70:1329
affordable housing202 puts most of the private rental market out of
reach for many ex-felons. Unsurprisingly then, formerly incarcerated
people are nearly ten times more likely to experience homelessness
than the general public.203 And homelessness in turn increases the risk
of reincarceration, both because it destabilizes ex-felons’ return to
society204 and because local authorities criminalize homelessness itself
in a variety of ways.205
The federal felon-in-possession ban exacerbates an already dire
housing problem for a vulnerable group. This is because § 922(g)(1)’s
expansive scope, when combined with strict supervised release
conditions,206 can effectively render an ex-felon’s preferred residence
unsuitable if firearms are kept in the home by a roommate or family
member. Under these circumstances, ex-felons face an unenviable
choice. They can try to convince their cotenants to part ways with their
firearms, risk revocation of their supervised release or conviction for
constructive possession of a weapon, or find somewhere else to live.
The scale of this particular housing hurdle is potentially
substantial. Roughly 40 percent of American adults live in a gunowning
household, 207 all of which would be effectively off-limits to exfelons
unwilling to risk a constructive possession charge. For anyone
subject to the federal felon-in-possession ban, finding housing in a
country with nearly four hundred million guns208 could be an
202. See NAT’L LOW INCOME HOUS. COAL., OUT OF REACH: THE HIGH COST OF HOUSING
1, 4–6 (2018), https://nlihc.org/sites/default/files/oor/OOR_2018.pdf [https://perma.cc/G59W-
203. See Lucius Couloute, Nowhere To Go: Homelessness Among Formerly Incarcerated
People, PRISON POL’Y INITIATIVE (Aug. 2018), https://www.prisonpolicy.org/reports/housing.
205. See Human Rights Council, Rep. of the Special Rapporteur on Extreme Poverty and
Human Rights on His Mission to the United States of America, U.N. Doc. A/HRC/38/33/Add.1,
at 12 (2018), http://undocs.org/A/HRC/38/33/ADD.1 [https://perma.cc/96Q3-FZKT] (“In many
[American] cities, homeless persons are effectively criminalized for the situation in which they
206. See, e.g., 18 U.S.C. § 3563(b)(8) (2018) (authorizing a sentencing court to require that a
defendant “refrain from possessing a firearm” during his term of supervised release).
207. John Gramlich & Katherine Schaeffer, 7 Facts About Guns in the U.S., PEW RSCH. CTR.
(Oct. 22, 2019), https://www.pewresearch.org/fact-tank/2019/10/22/facts-about-guns-in-unitedstates
208. GIFFORDS LAW CTR., supra note 86 (estimating that there are roughly 393 million
firearms in the United States).
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unexpected ordeal. Living in the United States with a felony record is
challenging enough. And § 922(g)(1), among its many harms, makes
ex-felons’ return to society needlessly harder.
B. Chilling Nonfelons’ Exercise of Their Second Amendment Right
One aspect of § 922(g)(1) that often goes unaddressed is the
collateral damage it inflicts on people outside of the criminal justice
system.209 The robust enforcement of the federal felon-in-possession
ban effectively chills the Second Amendment rights of nonfelons who
choose to live with loved ones with a felony record. There are several
reasons why lawful gun purchasers may choose to own a firearm, from
hunting and recreation to self-defense. Two-thirds of gun owners claim
that protection is the primary reason for owning a firearm, and nearly
30 percent of female gun owners say protection is the sole reason they
own one.210 In short, Americans often choose to own firearms for the
“core lawful purpose of self-defense.”211
But the federal felon-in-possession ban makes exercising this
Second Amendment right a risky proposition for those who live with
loved ones with felony records. Simply having the ability to “exercise
dominion and control” over a firearm is often enough for an ex-felon
to constructively, and thus unlawfully, possess a firearm under
§ 922(g)(1).212 Consequently, because a nonfelon keeping a gun in the
home does not necessarily exclude an ex-felon from jointly
“possessing” it,213 an ex-felon can face a criminal conviction for merely
living somewhere where he knows firearms are kept, even if those
209. But see United States v. Huet, 665 F.3d 588, 601 (3d Cir. 2012) (“We are mindful of the
risk that felon dispossession statutes, when combined with laws regarding accomplice liability,
may be misused to subject law-abiding cohabitants to liability simply for possessing a weapon in
the home.”); Marshall, supra note 89, at 734 (describing the federal felon-in-possession ban as
“go[ing] beyond even stripping the convict of the entire core of the [Second Amendment] right,
by pressuring those who share his household to disarm themselves as well, to avoid the risk of the
convict’s being prosecuted for unlawful possession based on theories of joint or constructive
210. Gramlich & Schaeffer, supra note 207.
211. District of Columbia v. Heller, 554 U.S. 570, 630 (2008).
212. See supra Part II.A.
213. See, e.g., United States v. Gallimore, 247 F.3d 134, 136–37 (4th Cir. 2001) (“[Section]
922(g)(1) does not require proof of actual or exclusive possession; constructive or joint possession
1362 DUKE LAW JOURNAL [Vol. 70:1329
firearms are stored in a locked compartment214 or are formally
“owned” by a spouse or family member.215 Courts of appeals have
emphasized, of course, that an ex-felon’s “mere proximity” to a gun or
his mere presence in a residence where a gun is kept is not sufficient to
prove constructive possession under § 922(g)(1).216 But deciding
whether certain factors establish the requisite “nexus”217 between an
ex-felon and a specific firearm involves a fact-intensive and
unpredictable inquiry that offers nonfelons little guidance.218
United States v. Griffin219 illustrates the dilemma faced by gun
owners who live with ex-felons. After moving in with his parents
following his release from federal prison, the defendant in Griffin, an
ex-felon, was later convicted under § 922(g)(1) after police found
ammunition and ten firearms in his parents’ home.220 Because the
firearms belonged to the defendant’s father, who was an avid hunter,
the Seventh Circuit concluded that the government had failed to
sufficiently demonstrate that the defendant “intended to exercise
control” over his father’s guns, and the court reversed the defendant’s
conviction.221 But this reversal came more than four years after the
defendant was initially arrested.222 For most nonfelons, exercising their
Second Amendment rights simply will not be worth the risk of having
their ex-felon loved ones endure years of trials and appeals in federal
214. See United States v. Rivers, 355 F. App’x 163, 165–66 (10th Cir. 2009) (upholding a
defendant’s § 922(g)(1) conviction although police recovered the weapons from a locked
compartment to which the defendant did not have a key).
215. See, e.g., United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (finding it immaterial
that the defendant’s wife owned the firearm because constructive possession can be joint).
216. See, e.g., United States v. Griffin, 684 F.3d 691, 696 (7th Cir. 2012) (“We have explained
repeatedly that mere proximity to contraband is not enough to establish a sufficient nexus to
prove constructive possession.”).
217. Id. at 695 (quoting United States v. Morris, 576 F.3d 661, 666 (7th Cir. 2009)).
218. Compare United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995) (finding constructive
possession where guns were seized in a bedroom in the defendant’s girlfriend’s residence that also
contained the defendant’s jewelry and clothes), with Griffin, 684 F.3d at 698–99 (finding no
constructive possession where the defendant moved into his parent’s house where several
firearms were later found).
219. United States v. Griffin, 684 F.3d 691 (7th Cir. 2012).
220. Id. at 693–94.
221. Id. at 693, 699.
222. The defendant in Griffin was arrested in April 2008, id. at 693, and the case was decided
by the Seventh Circuit in July 2012, id. at 691.
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Indeed, nonfelons who take the risk of both living with an ex-felon
and keeping firearms in the home may ultimately face criminal liability
themselves. Consider United States v. Huet.223 The defendant in that
case shared a home with her boyfriend, who had a prior federal
conviction for possessing an unregistered firearm and thus was subject
to the federal felon-in-possession ban.224 After police seized a rifle in
the couple’s upstairs bedroom while executing a search warrant, the
government indicted the boyfriend with illegal possession of the
weapon under § 922(g)(1).225 Yet despite being able to lawfully possess
a firearm herself, the defendant was indicted as well for aiding and
abetting her boyfriend’s unlawful firearm possession.226 In holding that
this aiding and abetting charge did not violate the defendant’s Second
Amendment rights, the Third Circuit acknowledged the risk that a
felon-in-possession ban, when combined with laws regarding
accomplice liability, might be “misused to subject law-abiding
cohabitants to [criminal] liability simply for possessing a weapon in the
home.”227 But the court then insisted that the defendant’s right to keep
a firearm in the home “did not give her the right to facilitate” her
boyfriend’s unlawful possession of one.228 And because the
government had sufficiently alleged both that the defendant knew her
boyfriend was barred from possessing a firearm and that she had
knowingly aided and abetted his possession of a firearm anyway, the
government’s case against the defendant could proceed.229
The federal felon-in-possession ban thus presents millions of
nonfelons who have family members involved in the criminal justice
system230 with an unappealing choice as well: keep firearms in the home
or live with their loved ones. They cannot do both.
223. United States v. Huet, 665 F.3d 588 (3d Cir. 2012).
224. Id. at 592–93.
226. Id. at 593. The government charged the defendant under a general federal aiding and
abetting statute, which provides that, “Whoever commits an offense against the United States or
aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
18 U.S.C. § 2(a) (2018).
227. Huet, 665 F.3d at 601.
228. Id. at 602.
229. Id. at 596, 603.
230. In 2016 alone, roughly 626,000 people were released from state and federal correctional
authorities, meaning that hundreds of thousands of households have family members who were
formerly incarcerated. U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., PRISONERS IN 2016:
1364 DUKE LAW JOURNAL [Vol. 70:1329
C. Targeting Communities of Color
Finally, every aspect of the American criminal justice system is
intimately connected with race,231 and the federal felon-in-possession
ban is no different. Criminalizing the use and possession of firearms
disproportionately impacts the Black community. Of the 7,647
convictions under § 922(g)(1) in fiscal year 2019, more than 55 percent
of the offenders were Black, which was more than twice the percentage
of white offenders (24.8 percent)232 and more than four times the
percentage of Black Americans in the general population.233 Racial
disparities are especially stark in the context of firearms offenses.
Nearly 53 percent of defendants convicted of any federal gun crime
were Black, which exceeded the percentage of Black offenders in every
other category of federal crime save robbery (58.1 percent).234
Among the myriad explanations for such racially disparate
outcomes, at least two are salient. First, Black Americans are
overrepresented in the criminal justice system to begin with.235 For
instance, given that an estimated 33 percent of adult Black males have
a felony conviction compared to 13 percent of all adult males,236 simple
math dictates that Black men are more likely to have a predicate felony
necessary for a § 922(g)(1) charge compared to other demographic
groups. Second, as with many other aspects of the criminal justice
system, people of color have plainly “b[orne] the brunt of
SUMMARY 1 (2018), https://www.bjs.gov/content/pub/pdf/p16_sum.pdf [https://perma.cc/4EZU-
231. See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN
THE AGE OF COLORBLINDNESS (2012) (detailing how the War on Drugs and other law
enforcement policies have disproportionately harmed communities of color and facilitated the
mass incarceration of Black men).
232. FY 2019 Quick Facts, supra note 16, at 1.
233. QuickFacts, U.S. CENSUS BUREAU (2019), https://www.census.gov/quickfacts/fact/table/
US/PST045218 [https://perma.cc/Y3VA-WF66] (indicating that African Americans comprise
approximately 13.4 percent of the total U.S. population).
234. 2018 U.S. SENT’G COMM’N, supra note 92, at 48.
235. See THE SENT’G PROJECT, FACT SHEET: TRENDS IN U.S. CORRECTIONS 5 (2018),
K935-CNPT] (noting that Black men are six times as likely to be incarcerated as white men
and that one in three Black men born in 2001 are likely to be incarcerated at some point in
236. Shannon et al., supra note 28, at 1807.
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enforcement” of the nation’s gun crimes for decades.237 New York
City’s infamous stop-and-frisk policy—which a federal district court
found unconstitutionally targeted young of men of color238—aimed to
tackle gun violence and illegal gun possession.239
Yet statistics about § 922(g)(1) convictions alone fail to fully
capture the potential scale of this inequality. Because of their felony
records, nearly a quarter of Black adults have been permanently
stripped of the right to lawfully possess firearms.240 And given the de
facto racial and socioeconomic segregation that persists in many
American cities,241 the federal felon-in-possession ban effectively
disarms large swaths of communities of color. The dynamics of this
phenomenon are not complicated. Ex-felons returning to society are
disproportionately of color because convicted felons are.242 These same
ex-felons return to predominantly Black or Latino neighborhoods in
urban areas where affordable housing or family networks (or both)
exist. Taking advantage of these networks, they move in with spouses,
family members, or roommates. And because the risk of a § 922(g)(1)
conviction makes it unwise for these ex-felons to be anywhere near a
firearm, the spouses and family members with whom these ex-felons
choose to live are themselves effectively barred from possessing
firearms—a dilemma discussed above and one which is particularly
prevalent in communities of color given the overrepresentation of
nonwhite offenders in the criminal justice system.243 Consequently, in
certain nonwhite neighborhoods with large concentrations of ex-felons
237. See Levin, supra note 37, at 2194–99 (detailing racial disparities in the criminal regulation
of gun possession); see also Maya Schenwar, Opinion, Reduce Gun Penalties, N.Y. TIMES (Mar.
14, 2014), https://nyti.ms/1iLDByg [https://perma.cc/E39Y-5GS3] (“In fact, a black person is
nearly twice as likely to face a mandatory minimum carrying charge than a white person who is
prosecuted for the same conduct.”).
238. See Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (finding that
New York City’s stop-and-frisk policy used indirect racial profiling).
239. See Levin, supra note 37, at 2202 (mentioning, in reference to New York City’s stop-andfrisk
policy, that “it was guns as much, if not more so, than drugs that justified the aggressive and
240. See Shannon et al., supra note 28, at 1807.
241. See, e.g., John Eligon & Robert Gebeloff, Affluent and Black, and Still Trapped By
Segregation, N.Y. TIMES (Aug. 20, 2016), https://nyti.ms/2bvF9m5 [https://perma.cc/N8F8-66ZY]
(describing various census figures indicating that “[n]ationally, black and white families of similar
incomes still live in separate worlds”).
242. See THE SENT’G PROJECT, supra note 235, at 5.
243. See supra Part III.B.
1366 DUKE LAW JOURNAL [Vol. 70:1329
living with their friends and loved ones, any possession of a gun might
give rise to criminal liability of some sort.
Sadly, the residents of these communities have perhaps the
strongest claim to needing a firearm for self-defense.244 To say that gun
violence unduly affects Black Americans is an understatement.245 Close
to 60 percent of Black adults say they personally know someone who
has been shot with a firearm either accidentally or intentionally.246
Roughly half of all homicide victims in the United States are Black,247
despite Black Americans comprising only 13 percent of the general
population.248 And Black males between the ages of twenty and thirtyfive
are seventeen times more likely to be killed by a firearm than their
white counterparts.249 The disproportionate victimization of Black
Americans has motivated several communities to pass stricter gun
control laws in the hopes of making those communities safer. The
District of Columbia handgun ban struck down in Heller was passed by
a majority-Black city council with overwhelming support from the
city’s majority-Black population.250 But the fact that Black Americans
are, statistically speaking, far more likely to be victims of gun violence
than those from other demographic groups also gives them especially
compelling reasons for exercising their Second Amendment right to
armed self-defense. In some sense then, the felon-in-possession ban
disproportionately disarms the very people who are most likely to find
themselves needing to defend their hearth and home.
Yet an armed Black man in an urban community simply does not
comport with the popular image of the “law-abiding, responsible” gun
244. See, e.g., Winkler, supra note 36, at 1568.
245. See Michael B. de Leeuw, Dale E. Ho, Jennifer K. Kim & Daniel S. Kotler, Ready, Aim,
Fire? District of Columbia v. Heller and Communities of Color, 25 HARV. BLACKLETTER L.J.
133, 148–52 (2009) (citing several nationwide statistics to support the claim that “the brunt of
[handgun] violence is borne by people of color”).
246. Gramlich & Schaeffer, supra note 207.
247. See VIOLENCE POL’Y CTR., BLACK HOMICIDE VICTIMIZATION IN THE UNITED STATES:
AN ANALYSIS OF 2017 HOMICIDE DATA 1 (2020), https://vpc.org/studies/blackhomicide20.pdf
[https://perma.cc/A569-ARA6] (noting that there were 7,809 Black homicide victims in the
United States in 2017).
248. Quickfacts, supra note 233.
249. THE EDUC. FUND TO STOP GUN VIOLENCE, GUN VIOLENCE IN AMERICA: AN
ANALYSIS OF 2018 CDC DATA 10 (2020), https://efsgv.org/wp-content/uploads/Gun-Violence-in-
250. See de Leeuw et al., supra note 245, at 167 (“[T]he Heller decision effectively silenced
the democratic will of a majority African-American electorate.”).
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owner, whether that be a gun-wielding rural white male or a white
woman defending herself from an assailant.251 Consequently, as
§ 922(g)(1)’s disparate impact on communities of color make clear, the
“people” of the Second Amendment may be equal in theory, but they
are hardly so in practice.
IV. A WAY FORWARD
Given the federal felon-in-possession ban’s harms, one might ask:
Where should lawmakers, ex-felons, and their family members go from
here? Of course, lethal firearms should not come into the hands of
dangerous people. And federal and state governments have a
compelling interest in using criminal sanctions to deter and punish gun
crimes. But, for § 922(g)(1), the ends of protecting the public do not
justify the statute’s blunt means. This Note, therefore, proposes a few
solutions that could potentially mitigate § 922(g)(1)’s myriad harms.
First, Congress should rewrite the statute so as to circumscribe its scope
on a number of fronts. Second, even if the political will to assist exfelons
is lacking, ex-felons should continue to bring as-applied
challenges to § 922(g)(1) in federal court. Finally, nonfelons living with
family members who are ex-felons should bring constitutional
challenges against § 922(g)(1), claiming that the statute unduly burdens
their Second Amendment right to keep firearms in the home for selfdefense.
A. Rewriting the Statute
Rewriting § 922(g)(1) would be the easiest path to achieving
widespread and immediate change. Section 922(g)(1) could be refined
in multiple ways. Congress should start by imposing a felon-inpossession
ban on a more limited subset of ex-felons—namely, those
who have been convicted of violent crimes.252 The Federal Firearms Act
that was enacted in 1938, for instance, limited its restrictions on firearm
possession to “any person who has been convicted of a crime of
251. See, e.g., Levin, supra note 37, at 2193 (“One consequence of the political Right’s support
for gun rights is the popularization of the image of the gun owner as rural white male.”).
252. See Marshall, supra note 89, at 728–30 (recommending that firearm disabilities be limited
to “convictions indicating that one actually poses some danger of physically harming others rather
than simply being dishonest or otherwise unsavory”).
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violence,”253 which the statute defined with an enumerated list of
obviously violent offenses.254 Congress could do something similar with
the current felon-in-possession ban, either by enumerating a new set of
disqualifying violent offenses or simply incorporating into § 922(g)(1)
the definition of “violent felony” that already exists in other federal
criminal statutes such as the ACCA.255 Reducing the number of
felonies that trigger the felon-in-possession ban would ensure that a
substantial number of ex-felons would no longer be permanently
disarmed for nonviolent offenses that arguably have little bearing on
their ability to be responsible gun owners.256
Congress could likewise limit where the felon-in-possession ban
applies. For example, ex-felons could be prohibited from carrying
firearms in public, where the risk of harming or intimidating others is
most acute.257 But their ability to safely “keep” firearms in the home
for self-defense could otherwise remain unfettered.258 Such a homebased
restriction would go a long way toward resolving the tension
between § 922(g)(1)’s broad reach and Heller’s emphasis on a
constitutional right to use “arms in defense of hearth and home.”259 A
more narrowly tailored law would also ensure that § 922(g)(1)
convictions punish dangerous conduct that involves more than just the
mere possession of firearms in an ex-felon’s residence.
Finally, § 922(g)(1) could be revised so that the current lifetime
prohibition on firearm possession imposed on ex-felons is replaced by
253. Federal Firearms Act, Pub. L. No. 75-785, § 2(f), 52 Stat. 1250, 1251 (1938). In 1968,
Congress expanded the federal felon-in-possession ban to cover all felons, including nonviolent
offenders, in response to a spate of high-profile assassinations in the 1960s and the civil unrest
that characterized the decade. See BLOCHER & MILLER, supra note 24, at 49–50.
254. Federal Firearms Act § (6), 52 Stat. at 1250 (defining “crime of violence” as including
murder, manslaughter, rape, kidnapping, burglary, assault with intent to kill, and similar violent
255. The ACCA defines a “violent felony” in relevant part as a “crime punishable by
imprisonment for a term exceeding one year” that either “has as an element the use, attempted
use, or threatened use of physical force against the person of another” or is “burglary, arson, or
extortion, [or] involves use of explosives.” 18 U.S.C. § 924(e)(2)(B) (2018).
256. See supra notes 146–53 and accompanying text.
257. See Marshall, supra note 89, at 731 (suggesting that the history of gun regulations
supports stripping those convicted of a crime of any right “to carry [firearms] openly off his
258. See Miller, supra note 36, at 1280 (arguing that individuals should have a “robust right”
to possess firearms in the home that is subject to substantial government restrictions elsewhere).
259. District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
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a ban with a shorter and more reasonable duration. One option for
Congress would be to follow the lead of other states and criminalize
firearm possession by an ex-felon only for a limited period of time after
that person’s release from incarceration, which would then be followed
by an automatic restoration of the ex-felon’s gun rights.260
Alternatively, Congress could make it easier for ex-felons to
individually petition for the restoration of their gun rights after a
certain time period following their disqualifying conviction, a process
that would better allow for a case-by-case assessment of the risk posed
by a prospective gun owner.261 In fact, such restoration procedures at
the state level currently allow thousands of ex-felons every year to not
only have their state gun rights restored262 but also to escape the
shadow of potential criminal liability under § 922(g)(1).263 Congress
could do well to replicate the state systems that most effectively
balance rights restoration with the general interest in public safety. Or
it could simply revive the restoration process that already exists under
federal law. Section 925(c) authorizes the attorney general to restore
gun rights to any individual barred from possessing a firearm under
federal law if certain conditions are met,264 but this procedure has been
defunct for nearly thirty years due to a lack of appropriated funds from
Congress.265 Whichever option Congress may ultimately pursue, a
260. See, e.g., TEX. PENAL CODE ANN. § 46.04(a) (West 2021) (barring ex-felons from
possessing firearms for up to five years after their release from prison or mandatory supervision,
whichever is later); see also Michael Luo, Felons Finding It Easy To Regain Gun Rights, N.Y.
TIMES (Nov. 13, 2011), https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regaingun-
rights.html [https://perma.cc/F9S4-PFN2] (“Today, in at least 11 states . . . restoration of
firearms rights is automatic, without any review at all, for many nonviolent felons, usually once
they finish their sentences, or after a certain amount of time crime-free.”).
261. Several states have similar restoration procedures that, for better or worse, allow those
with state felony convictions to have their gun rights restored with little to no discretionary review.
Luo, supra note 260.
262. See, e.g., id. (observing that 3,300 ex-felons and people convicted of domestic violence
misdemeanors have regained their gun rights in Washington State since 1995 under the state’s
gun rights restoration statute).
263. See 18 U.S.C. § 921(a)(20) (2018) (providing that “[a]ny conviction which has been
expunged or set aside or for which a person has been pardoned or has had civil rights restored”
does not qualify as a disqualifying felony conviction under § 922(g)(1)).
264. See id. § 925(c) (authorizing the attorney general to restore an individual’s gun rights if
it is established that “the applicant 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”).
265. See United States v. Bean, 537 U.S. 71, 74–75 (2002) (acknowledging this appropriations
bar on the federal restoration process); see also H.R. REP. NO. 102-618, at 13–14 (1992) (justifying
1370 DUKE LAW JOURNAL [Vol. 70:1329
more circumscribed statute would no doubt be more sensible than
indiscriminately stripping violent and nonviolent offenders alike of
their right to possess a firearm for life.
Given that ex-felons have long been a disfavored constituency,
federal legislators may have little interest in expending political capital
on revising a statute to make it more difficult to convict ex-felons of
possessing firearms. But the potential benefits of such reforms are
substantial, ranging from preventing the needless reincarceration of
ex-felons hoping to return to society and mitigating racial disparities in
the criminal justice system to reducing burdens on the judicial system
and facilitating the use of nonpunitive means to address crime and gun
violence. For lawmakers committed to criminal justice reform, tackling
§ 922(g)(1)’s harms directly would be time well spent.
B. Bringing As-Applied Challenges to § 922(g)(1) Convictions
Moving from Congress to the courts, ex-felons previously
convicted of nonviolent offenses should continue to bring as-applied
challenges against § 922(g)(1)’s lifetime ban on possessing firearms.266
The chance of success is miniscule. Only one circuit court has ever
upheld an as-applied challenge to § 922(g)(1).267 Moreover, courts have
determined that nonviolent offenses such as driving under the
influence268 and making a false statement to a lending institution are
sufficiently serious to “remove one from the scope of the Second
Amendment” entirely.269 And various factors for determining whether
a nonviolent ex-felon can be entrusted with a firearm—including the
passage of time since the ex-felon’s conviction, evidence of his
rehabilitation, his likelihood of recidivism, and his contributions to his
community since his offense—have been dismissed by some courts as
irrelevant to the as-applied inquiry.270
Despite these unfavorable odds, doctrinal development only
happens through litigation. Thus, as courts continue to hear as-applied
challenges to §922(g)(1), they will be compelled to explain time and
the appropriations bar by noting that the restoration process is costly, time-consuming, and
ultimately involves “guess[ing] whether a convicted felon . . . can be entrusted with a firearm”).
266. See supra Part I.B.
267. Binderup v. Att’y Gen., 836 F.3d 336, 339 (3d Cir. 2016) (en banc).
268. Holloway v. Att’y Gen., 948 F.3d 164, 168 (3d Cir. 2020).
269. Medina v. Whitaker, 913 F.3d 152, 154, 160 (D.C. Cir. 2019).
270. See id. at 160 (stating that such factors cannot “un-ring the bell of [an ex-felon’s]
conviction” and deeming them irrelevant in as-applied challenges brought by convicted felons).
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again why certain ex-felons who are fully rehabilitated and
unthreatening still deserve to be permanently stripped of their right to
defend themselves with a firearm. Regardless of whether these
challenges spark major doctrinal change or merely entrench the status
quo, they will at least ensure that § 922(g)(1)’s sweeping scope remains
top of mind for federal judges.
C. Bringing Constitutional Challenges to § 922(g)(1)
Perhaps the most successful challenges to § 922(g)(1) will come
not from the ex-felons who are directly targeted by the statute but
instead from family members who choose to live with them. Nonfelons
living with an ex-felon could assert that § 922(g)(1) indirectly yet
impermissibly burdens their core Second Amendment right to keep
firearms in the home for self-defense.271 The burden would be indirect,
of course, because the nonfelon could never be prosecuted personally
for violating § 922(g)(1). But a nonfelon must still ensure a loved one
is not held criminally liable for his or her own gun possession—by
consistently storing a firearm in such a way that places it beyond the
loved one’s “domain and control” or keeping the firearm outside of the
home at all times. These precautions burden the nonfelon’s ability to
fully use the weapon for self-defense. Owning a firearm, while
theoretically possible, is essentially impracticable.
Ezell v. City of Chicago272 suggests that even attenuated burdens
on the right to armed self-defense can amount to a Second Amendment
violation. There, the Seventh Circuit concluded that a Chicago
ordinance mandating that gun owners participate in one hour of
training at a firing range while prohibiting any firing ranges within city
limits impermissibly burdened the owners’ Second Amendment
rights.273 The ordinance did not ban firearm possession outright, nor
was such possession impossible. Indeed, as a practical matter, most
gunowners could have satisfied the mandatory one-hour training
271. See Ezell v. City of Chicago, 651 F.3d 684, 698 (7th Cir. 2011) (describing the “core
Second Amendment right” as the right “to possess firearms at home for protection”).
272. Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).
273. Id. at 710. The Seventh Circuit heard the case at the preliminary injunction stage and
thus only concluded that the challengers had a “strong likelihood of success on the merits.” Id.
But the court still suggested that it was very unlikely that Chicago city officials could “muster
sufficient evidence to justify [under intermediate scrutiny] banning firing ranges everywhere in
the city.” Id.
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requirement by driving to a shooting range in the suburbs.274 According
to the Ezell court, however, this possibility of compliance did not save
the ordinance. That gun owners could not satisfy the requirement in
Chicago was enough of a burden on their “right to maintain proficiency
in firearm use” to render the ordinance in violation of the Second
Amendment.275 And if the inconvenience of driving to a distant
shooting range for a one-hour training session burdens an individual’s
Second Amendment right, then a statute that puts a gun owner’s loved
ones at risk of criminal sanctions is surely just as burdensome.
Of course, challenging the burdens imposed by § 922(g)(1) on
nonfelons under such a theory would be novel, which would in turn
require navigating at least a few major procedural hurdles. It is unclear,
for instance, whether the potential or actual prosecution of a family
member with a felony record under § 922(g)(1) would constitute a
“concrete and particularized” injury sufficient to confer Article III
standing to that ex-felon’s nonfelon loved ones.276 When precisely a
nonfelon plaintiff suffers a constitutional injury caused by § 922(g)(1)’s
enforcement could also be a pivotal question.277 A gun purchase by a
nonfelon that ultimately leads to a loved one with a felony record being
charged under § 922(g)(1) for constructive possession of a firearm
could amount to an emotional injury sufficient to confer standing. And
a purchase that results in a loved one actually being convicted and
incarcerated almost certainly would.278 But fine distinctions could
prove fatal to such a case’s justiciability. For example, whether a
nonfelon plaintiff actually purchases a firearm or merely intends to do
so, and whether such a purchase actually causes a loved one with a
274. Id. at 697.
275. Id. at 698.
276. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (describing the elements of
Article III standing and requiring that an injury for such purposes be “concrete and
particularized” as well as “actual or imminent, not ‘conjectural’ or ‘hypothetical’” (citation
277. The ripeness doctrine requires that federal courts only hear cases where the facts “have
developed sufficiently to permit an intelligent and useful decision to be made.” Ripeness, BLACK’S
LAW DICTIONARY (11th ed. 2019). A case involving a plaintiff who has not yet been “immediately
harmed, or immediately threatened with harm” in a legal sense is unripe and thus nonjusticiable.
Poe v. Ullman, 367 U.S. 497, 504 (1961) (plurality opinion).
278. See Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018) (“[A] person’s interest in being united
with his relatives is sufficiently concrete and particularized to form the basis of an Article III
injury in fact.”).
2021 TIME TO RELOAD 1373
felony record to be charged under § 922(g)(1) or merely enhances the
likelihood of such a charge, could be dispositive.279
At bottom, a litigation strategy involving nonfelons bringing
constitutional challenges to § 922(g)(1) remains wholly untested, and
the likelihood of prevailing in such a case is uncertain. But then again,
the idea that the Second Amendment protects an individual right to
possess a firearm was considered fanciful not so long ago.280 Nonfelons
hoping to challenge § 922(g)(1)’s harms will never know their odds of
success until they try.
Designing sensible and effective firearms regulations to
counteract gun violence is undoubtedly a worthy goal.281 But the
federal felon-in-possession ban is a blunt and punitive remedy that is
unacceptably damaging in its own right. Its sweeping scope ensures that
anyone with a felony conviction who comes into possession of a gun
can be easily, unconditionally, and harshly punished. It
indiscriminately targets nonviolent offenders as well as conduct wholly
unrelated to criminal activity. And, as this Note addresses, it exacts
tangible harms on ex-felons and their communities—from
complicating their reentry into society, to burdening the Second
Amendment rights of their nonfelon family members, to effectively
disarming entire neighborhoods.
That the felon-in-possession ban is also incompatible with the
spirit of Heller makes the current status quo all the more indefensible.
Those who advocate for a robust constitutional right to “keep and bear
Arms” should be troubled by a statute that permanently strips a sizable
portion of the populace of that same right. And those pushing for
279. See, e.g., Parker v. District of Columbia, 478 F.3d 370, 374–78 (D.C. Cir. 2007), aff’d sub
nom. District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that residents who merely
expressed an intention to violate the District of Columbia’s handgun ban lacked standing to sue
but Dick Heller, who had applied for and been denied a registration certificate to own a handgun,
had suffered an injury sufficient to support standing).
280. See Michael Waldman, How the NRA Rewrote the Second Amendment, POLITICO (May
19, 2014), https://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856
281. See John Gramlich, What the Data Says About Gun Deaths in the U.S., PEW RSCH. CTR.
(Aug. 16, 2019), https://www.pewresearch.org/fact-tank/2019/08/16/what-the-data-says-aboutgun-
deaths-in-the-u-s [https://perma.cc/AM2N-REHG] (noting that over 39,000 people died from
gun-related injuries in the United States in 2017).
1374 DUKE LAW JOURNAL [Vol. 70:1329
criminal justice reform should be equally troubled by a statute that
funnels ex-felons back into prison for conduct that is often noncriminal
and otherwise constitutionally protected. When needed change will
come or what form it will take remains to be seen. But it is high time to
rethink the role of this sweeping and damaging statute in a post-Heller