Why can't Martha Stewart have a gun?

• Author: Marshall, C. Kevin

INTRODUCTION I. FELON DISARMAMENT IN THE UNITED STATES: NOT SO "LONGSTANDING" OR BROAD II. AMERICAN PRECEDENT--OR NOT--BEFORE WORLD WAR I III. ENGLISH ANTECEDENTS, REAL AND ALLEGED A. "Forfeiture of All Goods" B. Common Law C. Game Laws D. "A Subversion of the Civil Government" E. "Notoriously Disaffected" IV. APPLICATION: DISARMING SOME FELONS, TO SOME EXTENT, FOR SOME TIME CONCLUSION INTRODUCTION

In 2004, domestic diva Martha Stewart was convicted of obstruction of justice, making false statements, and two counts of conspiracy in connection with dubious stock transactions. Although sentenced to only five months in jail plus a period of supervised release, she risked a much harsher punishment. Because she was convicted of a crime punishable by more than a year in prison, federal law bans her from having any gun. (1) Her ban is for life, unless the Attorney General lifts the disability--a decision in his discretion and that he effectively cannot make because Congress regularly bars the Bureau of Alcohol, Tobacco, Firearms, and Explosives from spending any money to review petitions to lift firearms disabilities. (2)

Is the public safer now that Martha Stewart is completely and permanently disarmed? More to the point, how could such a ban be constitutional, now that the Supreme Court, in District of Columbia v. Heller, (3) not only has confirmed that the Second Amendment secures a personal right to keep and bear arms, but also has emphasized its historical tie to the right of self-defense?

The Court, in dicta, told everyone to move along. It asserted, without citation, that "prohibitions on the possession of firearms by felons" were "longstanding" and declared them "presumptively lawful." (4) The D.C. Circuit decision below, which Heller affirmed, similarly offered that bans on felons keeping and bearing arms "promote the government's interest in public safety consistent with our common law tradition" and "do not impair the core conduct upon which the right was premised," primarily self-defense. (5) But it cited only Supreme Court dicta from 1980, (6) which Heller subsequently disparaged. (7) The Fifth Circuit in United States v. Emerson, (8) the first decision of a circuit court to adopt an individual-right interpretation, stated that a ban on possession by felons "is in no way inconsistent with an individual rights model," citing an older Supreme Court dictum stating that bans on carrying concealed weapons do not violate the Second Amendment and a handful of law review articles contending that Founding-era England and America excluded felons from the right to have arms. (9) Emerson's holding, like Heller's, did not involve disarming a felon, although the court did uphold a related federal disability applied to a man subject to a restraining order that included a finding that he was a threat to his wife's physical safety. (10)

The only problem with these politically understandable yet poorly briefed and supported assurances in dicta is that, as explained below in Parts I and II, a lifetime ban on any felon possessing any firearm is not "longstanding" in America. Nor, as Part III shows, is it supported by the common law or the English right to have arms at the time of the Founding. Moreover, it does impair the "core conduct" of self-defense in the home--at least for a felon who has completed his sentence, or someone who shares his household. Similarly, the reasoning of recent state court cases upholding bans on felon possession under state constitutional arms rights is little better than the federal dicta, relying on the same thin claims as Emerson. (11) And earlier state cases upholding various felon arms disabilities after World War II tended breezily to invoke the "police power," (12) which begs the question and amounts to the minimal "rational basis" review that Heller rejected as making a constitutional arms right superfluous with other protections. (13)

Whatever the correct constitutional rule, then, the subject cries out for a serious and fresh look--the first serious look since the 1920s, and arguably the first ever in light of the historical right. The need is particularly acute given the cancerous growth since the 1920s of "regulatory" crimes punishable by more than a year in prison, as distinct from traditional common-law crimes. The effect of this growth has been to expand the number and types of crimes that trigger "felon" disabilities to rope in persons whose convictions do not establish any threat that they will physically harm anyone, much less with a gun. (14)

This Article aims to start that necessary reexamination. As explained below, Emerson was on the right track, but not because there is anything magical about being a "felon" (a peculiarly indeterminate term historically) that vaporizes one's Second Amendment rights. Rather, actual "longstanding" precedent in America and pre-Founding England suggests that a firearms disability can be consistent with the Second Amendment to the extent that--somewhat like the holding in Emerson, yet unlike with the hapless Martha Stewart--its basis credibly indicates a present danger that one will misuse arms against others and the disability redresses that danger. In particular, for the reasons offered below in Part IV, (1) stripping a person of his right to keep and bear arms for a "felony" conviction is constitutionally dubious unless the conviction was for a "crime of violence," a term having a longstanding yet flexible meaning specially developed for arms regulations; and (2) although some disability is plainly justified for persons convicted of crimes of violence, a lifetime ban on all keeping of firearms by such felons is also constitutionally dubious.

1. FELON DISARMAMENT IN THE UNITED STATES: NOT SO "LONGSTANDING" OR BROAD

   The federal "felon" disability--barring any person convicted of a crime punishable by more than a year in prison from possessing any firearm--is less than fifty years old. A disability from all such persons' receiving any firearm in interstate commerce dates to a 1961 amendment of the Federal Firearms Act of 1938 ("FFA"). (15) Congress in 1968, using the same standard, banned possession and extended the prohibition on receipt to include any firearm that ever had traveled in interstate commerce. (16) This history does not make disarmament of all felons an infant, but it is hardly "longstanding." (17) Further, the temper of those times--well after the collective-right view of the Second Amendment had overrun academia and the courts--hardly encouraged regard for the Second Amendment.

   For the quarter century before 1961, the original FFA had a narrower basis for a disability, limited to those convicted of a "crime of violence." (18) The statute defined "crime of violence" as "murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking," and certain forms of aggravated assault--"assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year." (19) During floor debate, two Senators asked about the FFA's compatibility with the Second Amendment and received brief assurances that it presented no conflict. (20) The Senate committee that initiated the bill stated in a two-page report that it would "eliminate the gun from the crooks' hands, while interfering as little as possible with the law-abiding citizen from whom protests have been received against any attempt to take from him his means of protection from the outlaws who have rendered living conditions unbearable in the past decade." (21)

   When the First and Third Circuits upheld the original FFA's "crime of violence" disability in 1942, they invoked neither history nor precedent but rather the collective-right view of the Second Amendment that Heller rejected. (22) The First Circuit in Cases v. United States resolved the case on the broad ground that a person has no right under the Second Amendment unless he is "a member of a[]military organization" or uses his weapon "in preparation for a military career," thus "contributing to the efficiency of the well regulated militia." (23) The Third Circuit in United States v. Tot did allude to decisions under state constitutions upholding regulation of the carrying of arms and assert that a lifetime ban on possession was of the "general type." (24) But it ultimately depended on its view that the Second Amendment "was not adopted with individual rights in mind" and that the FFA "does not infringe upon the preservation of the well regulated militia protected by the Second Amendment." (25) The court in Tot neither cited nor referred to any case upholding a felon disability under a state arms right, nor did any of the three law review articles it cited. (26) From an individual-right perspective, the closest thing to relevant reasoning was the court's analogy, without citation, to "a mental patient of the maniac type" and "a child of immature years," neither of whom one could "argue seriously" suffered a constitutional violation from "a limitation upon the privilege of possessing weapons," and a description of the "crime of violence" disability as affecting "persons who have previously, by due process of law, been shown to be aggressors against society." (27)

   Although one wouldn't know it from the circuit courts' thin and casual reasoning, the "crime of violence" disability in the original FFA had roots that the later across-the-board disability lacked. It built on the Uniform Firearms Act ("UFA" or "Act"), which the National Conference of Commissioners on Uniform State Laws had promulgated in 1926 and again in 1930. (28)

   The Conference had developed the UFA beginning in 1923 based on a proposal it received. This effort was part of a blossoming of firearms regulation after World War I, fed by, among other things, growing crime after Prohibition began in 1920 (the Senate report denouncing "the outlaws who have...