The Coming Assault on Categorical Gun Prohibitions

Publication Date

2025

Abstract

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 postreforms 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.

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