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« Lyft offering free rides to protest NRA at Dallas | Main | NY threatens guns manufacturers' banking: Hornady refuses to sell to NY agencies »

New as-applied 2A case

Posted by David Hardy · 30 April 2018 09:15 AM

Eugene Volokh discusses it here. In the Second Amendment context, an as-applied challenge involves challenging a broad prohibition that is permissible as a category (in this case, a bar on gun possession by convicted felons) but may be a 2A violation as applied to this case (a nonviolent felony conviction that is 28 years old).

The question is whether Heller allows for such challenges. A few courts have said no -- Heller says that bars to felon possession are presumptively lawful, so felons should be treated as having no Second Amendment rights at all. More courts have said yes -- Heller says the general ban is "presumptively" lawful, and a person can rebut that presumption with evidence that the conviction is very old and they have been a law-abiding person since.

(Actually this raises a deeper question. When the Heller majority says such bans are "presumptively" lawful, does it mean (1) the bans are legally presumed to be permissible (whether the presumption can be rebutted or not), so that if one is challenged we never get to the question of what standard of review applies and whether the justification is there, or (2) under the ordinary standards of review, the Court presumes that bans like this will pass muster? Essentially, when such a ban is challenged, do we go to standard of review and judge whether the law's necessity justifies the infringement, or do we cut everything off before reaching that stage?

Hat tip to Alice Beard....

3 Comments | Leave a comment

Jeffrey C. Dege | April 30, 2018 3:35 PM | Reply

My understanding is that law provides a way for someone to petition for BATF for a restoration of rights - and that Congress has repeatedly denied funding for the processing.

And that the courts have held that unless and until Congress removes the prohibition individuals who are banned due to federal convictions have no recourse.

Mike Murray | May 1, 2018 11:07 AM | Reply

Although difficult and expensive, a felon's civil rights can be restored, and the ATF has nothing to to with it. Personally I think it's ridiculous to prohibit felons from owning arms. Just as with regular citizens, the felons who shouldn't have a gun will get one anyway, and the rest are being deprived of a basic right. Either they have "paid their debt" to society, or they have not. Funny thing about "rights", either we ALL have them, or soon enough NO ONE will have them.

Anonymous | May 1, 2018 8:40 PM | Reply

"that Congress has repeatedly denied funding for the processing" via BATFE.

BATFE is not the only means to have the right reinstated, I think. One could also petition the court directly. Or be pardoned.

IANAL.

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