77 STAN. L. REV. ONLINE 31 (2025)
Ian Ayres & Fredrick E. Vars
Ian Ayres is the Oscar M. Ruebhausen Professor at Yale Law School. Fredrick E. Vars is the Robert W. Hodgkins Chair of Law at the University of Alabama School of Law.
Lower federal courts are struggling to determine the constitutionality of longstanding federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms. While Justice Scalia in Heller described such laws as "presumptively lawful," Justice Thomas's more recent Bruen decision held that essentially all gun regulations are presumptively unconstitutional unless the government can provide sufficiently analogous Founding- or Reconstruction-era gun regulations. In particular, courts must consider "how and why the regulations burden a law-abiding citizen's right to armed self-defense." Some courts applying the Bruen test have had difficulty finding "how" analogs -- particularly with regard to the permanent nature of federal prohibitions and their imposition without individualized determinations of dangerousness. For example, is a historical "surety law" requiring an individual to post a bond before carrying a firearm in public sufficiently analogous to a modern law allowing courts to declare an individual too dangerous to possess a firearm? Bruen suggested that the answer would be no, but Rahimi said yes.
This essay proposes a number of ex ante and ex post reforms that would simultaneously help to insulate class-based prohibitions from constitutional attack, better target gun restrictions to individuals who pose credible threats to public safety or themselves, enhance individual liberty, and provide greater due process protections. In particular, we propose that state and federal trial court judges ex ante include express individualized determinations of dangerousness in criminal sentencing and involuntary commitment orders. We also propose that Congress restart the existing section 925(c) petition mechanism so that any individual subject to a firearm restriction can ex post receive an individualized determination of whether the restriction is still warranted.
Lower courts are grappling with challenges to what were, until recently, settled Second Amendment laws -- most notably, the federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms. These categorical prohibitions are two of the most prominent so-called "federal prohibitors." People who fall into one or more of the prohibited categories may not lawfully purchase or possess firearms.
At the heart of these disputes is an attempt to reconcile two conflicting Second Amendment presumptions. The first presumption comes from the 2008 District of Columbia v. Heller decision. In that ground-breaking decision, Justice Scalia went out of his way to emphasize that, notwithstanding a brand-new individual right to bear arms, prohibitions of firearm possession by "felons and the mentally ill" are "presumptively lawful."
In contrast, the Court's 2022 New York State Rifle & Pistol Ass'n v. Bruen decision seems to reverse Heller's lawfulness presumption. Justice Thomas's majority opinion declared that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Federal prohibitors restrict gun rights and therefore trigger Bruen's threshold requirement of regulating conduct protected by the Amendment's plain text. So, it seems that under Bruen, federal (and state) class-based gun restrictions are presumptively unconstitutional. To prove otherwise, the government must "demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." Thus, Bruen effectively requires the government to demonstrate that gun regulations have sufficient analogs with regard to both "[w]hy and how the regulation burdens" the Second Amendment right. Instead of presuming that legislators are acting constitutionally, as the Court assumes with respect to other types of legislation, Bruen presumes that legislators are acting unconstitutionally whenever they restrict gun rights.
The majority in United States v. Rahimi -- the most recent landmark opinion on gun regulations -- seems well aware of doctrinal tension between Bruen and Heller. The defendant in Rahimi possessed a firearm while under a domestic violence restraining order, which violated another federal prohibitor. Emphasizing that the prohibitor was "temporary" and applied "only once a court has found the defendant" to be dangerous, the decision goes out of its way to clarify: "[W]e do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse . . . ." But the Chief Justice never explains why these categorical and permanent legislative gun bans are not called into question. On the contrary, as explained below, several plaintiffs after Bruen have challenged class-based gun prohibitors with increasing success.
In this essay, we argue that courts deciding challenges to the constitutionality of categorical prohibitors are likely to resolve the "presumption conflict" in favor of Bruen. In other words, the Supreme Court will require the government to justify categorical prohibitors with sufficiently similar historic analogs, both in terms of why the federal prohibitor is imposed and how it restricts gun rights. Rahimi goes a long way toward satisfying the "why" half of the analog requirements. Chief Justice Roberts forged an 8-1 majority that held that: "Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others." This holding by itself may satisfy the "why" justification for virtually all existing status-based categorical prohibitors, which are legislative disarmaments of classes of people that the legislature believes to be dangerous.
After Rahimi, future constitutional challenges to categorical gun prohibitors will likely focus on whether there are sufficient historical analogs as to "how" these laws restrict gun rights. Finding sufficient historical "how" analogs may prove difficult because Rahimi upheld the prohibition at issue only because it was temporary and based on an individualized finding of dangerousness. State and federal prohibitions on gun possession and purchase by felons and individuals who have been involuntarily committed share neither of these core Rahimi attributes.
To shore up the constitutionality of existing gun prohibitor categories, this essay proposes "ex ante" and "ex post" reforms that state and federal judges and legislators can deploy, specifically by making the prohibitions less permanent and more individualized. The simplest ex post reform is to give all categorically prohibited individuals the right to petition for the restoration of their gun rights. A right to such a petition would transform the permanent possession ban into a mere rebuttable presumption of dangerousness. No loss of gun rights would necessarily be permanent, and anyone subject to a prohibitor would be able to demand an individualized determination of dangerousness.
This proposal is not radical. In fact, this petition right is already enshrined in an existing federal law, 18 U.S.C. section 925(c), with regard to all federal restrictions on gun purchase or possession. This statutory provision creates a mechanism not only to demand a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) determination on whether the applicant is "likely to act in a manner dangerous to public safety," but also provides for judicial review. But, as detailed below, the section 925(c) petition process has been effectively suspended since 1993, when Congress prohibited any appropriations on the process. Congress justified this decision on the ground that the process was time-consuming and could have "devastating consequences." Bruen has led to an assault on categorical prohibitors by requiring historical how and why analogs. To preserve categorical prohibitors, Congress should restart the petition process, making federal prohibitors more analogous to our nation's history of firearm regulation and to the restriction upheld in Rahimi.
We also propose the ex ante reform that judges sentencing felons or involuntarily committing respondents include individualized findings of whether the individual is a "credible threat to the physical safety of others." Including such judicial findings would by itself convert the statutory categorical presumption of dangerousness to individualized determinations with adequate due process protections. Individual state trial court judges could unilaterally begin to do this now by simply adding: "Because I find you to be a credible threat to the physical safety of others, I hereby order . . ." to their ultimate disposition. Alternatively, state legislatures could require their judges to add such "credible threat" findings to their orders when making determinations that would trigger state or federal firearm prohibitions.
Having judges make ex ante determinations of dangerousness not only would help solidify the constitutionality of category-based gun regulations, but it would also represent sound public policy. It would expand liberty by preserving an individual's gun rights when doing so would not appreciably degrade public safety. If a judge at the time of sentencing a non-violent felon determines that they are not a credible threat to public safety, there is a relatively weak basis for eliminating their right to bear arms. While the Bruen decision decisively rejected means-end scrutiny to justify gun regulations, the proposals here have the additional benefit of more narrowly tailoring restrictions to further the important objective of reducing gun violence.
The remainder of this essay is divided into two parts. Part I details the brewing judicial conflict over whether the categorical prohibitors of federal law pass constitutional muster post-Bruen. Part II then describes the contentious history of section 925(c) and argues that our proposed ex ante and ex post reforms would help to insulate state and federal category-based prohibitors from constitutional attack.
The Bruen presumption potentially undermines existing categorical prohibitors. That is not lost on gun rights proponents, who have continued to bring challenges in virtually every circuit. In this Part, we focus on two post-Bruen circuit opinions striking down federal prohibitors with an eye toward predicting how the Supreme Court, given its application of the analog approach in Rahimi, is likely to resolve the circuit split.
In Range v. Attorney General, the Third Circuit en banc declared the federal felon-in-possession ban unconstitutional as applied to an individual with an old, nonviolent conviction. In 1995, Bryan Range pled guilty to making false statements to obtain food stamps in violation of Pennsylvania law. The conviction was classified as a misdemeanor, and Range was only sentenced to probation. But because the crime was punishable by up to five years in prison, the conviction placed Range within the permanent prohibitor category.
In attempting to defend the statute, the government first argued that the Bruen presumption of unconstitutionality did not apply because the plaintiff did not meet the threshold requirement of showing that the statute burdened rights falling within the text's protection. Specifically, the government argued that felons were not part of "the people" protected by the Second Amendment's command that "the right of the people to keep and bear Arms, shall not be infringed." The Third Circuit rejected the government's interpretation of the phrase as too restrictive, concluding that under the government's theory, "every American who gets a traffic ticket is no longer among 'the people' protected by the Second Amendment."
Because the court concluded that the plaintiff had met their threshold burden, the government was required to supply sufficient Bruen analogs. The government failed to do so. The court rejected the historical examples of category-based possession prohibitions that the government provided: "That Founding-era governments disarmed groups they distrusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to prove that Range is part of a similar group today." The Court concluded that "[a]part from the fact that those restrictions based on race and religion now would be unconstitutional under the First and Fourteenth Amendments, the Government does not successfully analogize those groups to Range and his individual circumstances."
Because of Bruen, the Third Circuit expressly discounted the more than 80 earlier precedents upholding the felon-in-possession ban:
The government petitioned the Supreme Court to review and reverse the decision, pointing out that the Third Circuit's opinion conflicted with Eighth and Tenth Circuit decisions upholding the felon-in-possession rule.
The Fifth Circuit in United States v. Daniels created a similar conflict by striking down the application of 18 U.S.C. section 922(g)(3), which prohibits an individual who "is an unlawful user of or addicted to any controlled substance" from possessing a firearm, to the defendant. The constitutional challenge stemmed from an April 2022 traffic stop in which "two law enforcement officers pulled Daniels over for driving without a license plate." During the stop, the officers found several marijuana cigarette butts and two loaded firearms in the vehicle. Daniels admitted that he had used marijuana since high school and continued to do so regularly. Prosecutors alleged that Daniels was an "unlawful user" of marijuana and charged him with violating section 922(g)(3). Daniels moved to dismiss the indictment, asserting that section 922(g)(3) was inconsistent with the Second Amendment as applied.
As Range found with felons, Daniels found that the class of drug users were part of "the people," and then found that the government-proffered founding precedents were insufficiently analogous. Daniels was particularly concerned with giving legislatures "unchecked power to designate a group of persons as 'dangerous' and thereby disarm them." The court worried that "Congress could claim that immigrants, the indigent, or the politically unpopular were presumptively 'dangerous' and eliminate their Second Amendment rights without judicial review." Or that "a state legislature [might] disarm[] all men, citing statistics that men commit more violent crimes than do women."
The Justice Department petitioned for Supreme Court review because the Fifth Circuit's decision "held an important Act of Congress unconstitutional." After Rahimi, the Supreme Court on July 2, 2024, granted, vacated, and remanded the government's petitions for certiorari in both Range and Daniels, as well as petitions from four defendants whose challenges to the felon-in-possession ban the Eighth and Tenth Circuits had rejected.
In this Part, we try to predict how the Supreme Court is likely to resolve the existing circuit splits with regard to felons and people who have been involuntarily committed.
To begin, it is unlikely that the Court would substantially modify the Bruen approach, which asks courts to undertake a threshold analysis followed by a search for "how" and "why" analogs. While Justice Barrett voiced concern with some originalist analysis in Rahimi and Bruen, there are no indications that any of the other members of the Bruen's six-Justice majority are open to change.
Second, when applying the Bruen approach, the Court is unlikely to accept the Justice Department's argument that categorical prohibitors on gun possession do not implicate the Second Amendment because the people in these categories do not qualify as "the people" protected by the amendment. The Court in Heller found that the term "the people" "unambiguously refers to all members of the political community, not an unspecified subset." A majority of the Justices are likely to accept the holdings of the Third and Fifth Circuits (despite those opinions being vacated post-Rahimi) that felons and drug users still qualify for the amendment's protection.
If we are correct that the Court is unlikely to substantially modify Bruen and likely to find that challengers meet the threshold requirement of being part of "the people," then the Court will have difficulty avoiding the Bruen logic that categorical prohibitors are presumptively unconstitutional. The contrary Heller (and Bruen concurrence) language that status-based regulations are "presumptively lawful" is mere dicta. We have trouble seeing how five Justices could elevate the Heller dicta over the binding command in Bruen that the government must provide sufficient evidence that prohibitors fit within our Nation's history and tradition of firearm regulation.
So, in resolving the existing circuit splits, the Supreme Court is likely to require the government to provide sufficient "why" and "how" analogs. As argued above, the Rahimi decision may by itself be sufficient to satisfy the "why" inquiry. In addressing the "why" behind the protective order prohibitor at issue in Rahimi, the Court found that "[o]ur tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others." This finding may be sufficient to satisfy the "why" requirement for many -- if not all -- of the other federal categorical prohibitors. In particular, the restrictions on felons, people who have been involuntarily committed, and drug users all have as a legislative purpose disarming groups of people that the legislature has deemed to be dangerous -- specifically, likely to commit crime using a firearm.
The more difficult task for the Justice Department will be showing that federal categorical prohibitors impose comparable burdens to historic analogs (the "how"). It is possible that the Supreme Court will not require much of a comparable burden analog because Rahimi itself relaxed the "how" analog requirement. In his Rahimi dissent, Justice Thomas persuasively argued that the surety analogs proffered by the government imposed substantially less severe burdens than the protective order prohibitors:
Notwithstanding the strength of Justice Thomas's argument, all other Justices signed off on Chief Justice Robert's conclusion that there were sufficient historical analogs for how the protective order regulation burdens Second Amendment rights. If Rahimi did substantially loosen the necessary resemblance between the challenged burden and the historic burden, then it is possible that five Justices would be willing to sign off on the constitutionality of the drug use, involuntary commitment, and felony category prohibitors.
There remains, however, a substantial risk that if Congress fails to act, the Supreme Court will resolve the circuit split in favor of the Third and Fifth Circuits and strike down all categorical or status-based prohibitors. The government may have difficulty meeting even a relaxed "how" analog requirement because other federal categorical prohibitors are less analogous to the burden analogs accepted in Rahimi. Indeed, Justice Gorsuch provided a virtual roadmap for future litigants taking aim at the federal prohibitors in his Rahimi concurrence:
In sum, the categorical prohibitors risk being struck down because they are permanent and lack individualized findings of dangerousness.
A key opportunity for ex ante reform is to make categorical prohibitors based on individualized findings of dangerousness. When a state actor places an individual in a prohibitor category, they should make a finding of whether or not that individual's access to guns poses a credible threat to public safety. The crucial point is that inclusion of an individual into a prohibitor category only happens through the decision of a state actor, and that state actor can simultaneously determine whether the individual poses a credible threat of unlawful gun violence.
For example, when a state court judge involuntarily commits an individual to a mental health facility, they could also make a finding of whether that individual's prospective gun ownership poses a credible threat to public safety or to themselves. There is a substantially heightened risk of suicide among this population, and the federal prohibitor has been shown to reduce gun suicide. Similarly, at the moment of sentencing a felon, any state or federal judge might include a finding of whether or not that individual's prospective gun ownership poses a credible threat to public safety. Such findings might be time limited (i.e. a judge might find that a defendant is a credible risk to public safety for the next three years). And in a world where the vast majority of convictions are a result of plea bargaining, the prosecutors and defense counsel might actively negotiate over whether a finding of dangerousness will be a part of the plea and, if so, for how long.
While any judge can begin including determinations of dangerousness in their sentences or involuntary commitment orders sua sponte, state legislatures can amend their statutes to require such determinations in these proceedings. Such amended statutes might also require judges to address the period of time for which they find individuals to be a credible threat and provide objective criteria for those determinations.
Another ex ante reform would be for Congress to limit the duration of firearm restrictions for particular prohibitor categories or to empower the Justice Department to promulgate rules designating the number of years the restriction would remain in place. These sunset provisions could vary by type of crime with, for example, shorter periods for non-violent felonies. Making the restrictions temporary would move federal prohibitors closer to the surety analogs relied upon in Rahimi, which "could not be required for more than six months at a time."
Finally, lawmakers at the state or federal level might empower judges to impose surety requirements as a prerequisite of gun possession. A modern surety law would allow judges (at, say, the time of sentencing or civil commitment) to require individuals to post a bond as a prerequisite to purchasing or possessing a firearm, and the bond would be forfeited if the individual was later found to unlawfully use the weapon. Alternatively, judges might require individuals to take out insurance to compensate any victims who are injured by unlawful use of the weapon. Such surety or analogous insurance requirements would almost certainly withstand scrutiny, as the surety analogs were a primary basis for the Rahimi ruling upholding the DVRO prohibitor.
In addition to these ex ante reforms, which apply to the moment judges place individuals into the prohibitor categories, there are also ex post reforms that provide pathways for people subject to purchase and possession bans to reacquire their gun rights. Providing ex post pathways moves the federal prohibitor regime toward historic analogs that the Court accepted in Rahimi.
In particular, ex post petitions respond to three different anxieties that the justices expressed in that case. First, the petition pathway renders firearm prohibitions less permanent. Instead of "trigger[ing] a permanent, life-long prohibition on possessing firearms and ammunition," a felony conviction would only create a presumption of ongoing prohibition that the individual would be free to rebut at any time. Second, the petition pathway would create an opportunity for individualized judicial determination of dangerousness. And finally, the petition pathway would let courts respond to the potential self-defense needs of the person subject to the prohibition.
One way to provide individualized ex post determinations is for federal courts to continue to consider "as-applied" challenges to the prohibitor restrictions. After all, Daniels and Range were each as-applied challenges of a federal statute. In contrast, Rahimi concerned an unsuccessful facial challenge to the DVRO prohibitor. As Chief Justice Roberts explained: "This is the 'most difficult challenge to mount successfully,' because it requires a defendant to 'establish that no set of circumstances exists under which the Act would be valid.' That means that to prevail, the Government need only demonstrate that Section 922(g)(8) is constitutional in some of its applications."
Individual litigants could continue to challenge a statute as applied to them because they are not a credible threat of gun violence. This might keep the categorical prohibitors' presumptive application in place for the various statutory categories, while providing a judicial mechanism for individuals who rebut the presumption to regain their firearm rights.
But today's "as applied" holdings can, over time, mature into precedents which exempt substantial subsets of Americans from the federal firearm prohibitor statute's reach.
A more direct way to create an ex post pathway is for Congress to authorize individuals who are subject to federal prohibitors to petition to reacquire their Second Amendment rights. A little-known provision of the federal gun control act, 18 U.S.C. section 925(c), already provides this exact opportunity. The section states:
This provision grants anyone subject to any of the federal prohibitors -- including the prohibitors related to DVRO orders, felony conviction, drug usage, and involuntary commitment -- the right to make such a petition. The Bureau of Alcohol, Tobacco and Firearms (ATF) makes the initial determination of whether to grant relief under this section.
This provision also enhances due process via an appeals process that includes a possibility of introducing additional evidence:
This protean provision is little known because Congress stripped the ATF's authority to spend appropriations on the evaluation of section 925(c) petitions in 1993.
Shortly after, in 1994, Justice O'Connor, writing for a unanimous Court in Beecham v. United States, construed the exemption clause of the Federal Firearms Act not to empower states to remove federal firearm prohibitions. After these two avenues for relief were closed, a series of litigants pursued section 925(c) claims directly in federal court with some success. But in 2002 the Supreme Court closed this avenue for relief as well, holding that the Firearm Owners' Protection Act (FOPA) of 1986 provision allowing federal judicial review was, on its own terms, only available to individuals "whose application for relief from disabilities is denied." This ruling effectively closed the door to any section 925(c) adjudication, because federal courts had no jurisdiction until the Attorney General (through their designee, the ATF) had made a determination, and the ATF couldn't make a determination because Congress expressly prohibited it from expending appropriations for such a purpose.
While Beecham and Bean ended the ATF's and state courts' roles as adjudicators of petitions for restoration of felon gun rights, Congress has been more successful in encouraging states to provide "relief from disability" (RFD) petition procedures that create pathways for individuals subject to involuntary commitment prohibitions to have their full Second Amendment rights restored. After the Virginia Tech massacre, Congress passed the NICS Improvement Amendments Act (NIAA), which gave states financial incentives to provide the FBI with better information about people who have been involuntarily committed. But the National Rifle Association extracted a legislative concession that, to qualify for the NIAA grants, states had to provide a "relief from disability" procedure.
The carrot incentives of federal grants have been effective in inducing a majority of states to institute mental health RFD programs: Before 2008, only a handful of states had RFD programs. Between 2009 and 2016, thirty states received NARIP grants totaling almost $110 million. As of April 2017, thirty-two states have enacted relief programs meeting the federal criteria as determined by BATF. A dozen more states have RFD programs that do not meet federal criteria.
But there remain troubling differences in coverage and procedures among the states.
The simplest most straightforward way to provide ex post petitions is for Congress to refund section 925(c). Reauthorizing ATF expenditures would give all Americans subject to any federal prohibitor the right to apply for restoration of their gun rights.
Alternatively, Congress might statutorily overrule Beecham and empower states to remove federal and state firearm restrictions. Under this hybrid approach, restricted individuals could either petition their state RFD program, or if their state does not have an ATF-certified program, petition the ATF for a determination of whether their gun rights should be restored.
Finally, it might be possible for the Attorney General to act unilaterally to reinitiate processing and making section 925(c) determinations. The appropriation limitations only apply to the ATF. In contrast, the text of section 925 refers to the Attorney General as the person empowered to make the determination. This creates the potential for the Attorney General to designate non-ATF members of the Justice Department to investigate section 925(c) applications and make relief recommendations to the Attorney General.
Attacks on federal categorical or status-based gun prohibitions are in full swing. Several cases challenging the constitutionality of these provisions have been remanded for further consideration in the aftermath of Rahimi, but there is little doubt that the Supreme Court will soon be forced to resolve the question of whether these categorical bans are consistent with the Second Amendment. The Bruen decision bizarrely prohibits courts from considering whether a challenged law is effective. Courts cannot engage in means-ends scrutiny to assess whether the benefits of a regulation justify the burden it imposes on the Second Amendment right. It is highly possible post-Rahimi that the Supreme Court will presume all categorical gun regulation to be unconstitutional. It is not difficult to contemplate a world in which only individuals adjudicated to be dangerous as part of a DVRO (as in Rahimi) or a red-flag petition can be constitutionally prohibited from possessing firearms.
In these highly partisan times, it is easy to cynically predict that Congressional gridlock will render many of our proposals infeasible. It is even possible that there might be reversal of party positions with regard to the funding of the section 925(c) program. In the 1990s, Congressional Republicans pushed for the refunding of the program, while Congressional Democrats took the lead in crippling these pathways to restore gun rights. Now that the Supreme Court may demand more individualized determinations of dangerousness, we might see Democrats support refunding as a way to shore up the program's Constitutionality, while Republican may oppose the program as a stepping-stone toward a broader laissez-faire regime.
But we put forward our proposals not merely as a way to accommodate the Supreme Court's literally atavistic approach to the Second Amendment. Our proposals also increase individual freedom and autonomy. There is no good reason to permanently prohibit individuals who have no heightened likelihood of violence from purchasing or possessing firearms. While the Supreme Court has rejected means-ends scrutiny as a part of its Constitutional standard in reviewing gun regulations, lawmakers can and should consider whether the regulation provides a sufficient bang (reduction in violence) for buck (burden on gun rights). An advantage of our proposals, in addition to their impact on Constitutional adjudication, is that they maintain the lion's share of the public-health benefits of categorical prohibitors while simultaneously reducing the regulations' Constitutional burdens. Creating more explicit ex ante determinations of dangerousness and more robust ex post pathways for restoration of gun rights is an agenda that could thread the hyper-partisan needle on gun rights and gun safety.