The Trap Chronicles, Vol. 3: Felons & Firearms

Lahny Silva

If your life was in jeopardy everyday, is you tellin’ me you wouldn’t need weaponry, just because of your felonies?

Felons and firearms sit at the intersection of grave issues that lie deep in the belly of American history. The two topics crisscross in dark historical eras where the democratic ideals of equality, freedom, and individual rights have been suffocated by violence, white supremacy, and a carceral state. Here, the American theoretical paradigm gets ensnared in racial hypocrisy concealed by the colorblind creed. 

Since the early twentieth century, legislatures, courts, and the American public have sanctioned the exclusion of felons from the right to bear and carry firearms. With the recent Supreme Court Second Amendment gun cases, the subsequent Circuit Court split, and the barrage of challenges brought in the federal district courts, the constitutionality of felon firearm bans is being seriously called into question. The perfect legal storm is brewing that could force the country to face the excruciating historical truths and broken promises embedded in the evolution of not only gun control, but also of the American version of liberty and fairness.

Starting with District of Columbia v. Heller in 2008, followed by McDonald v. City of Chicago in 2010 and New York State Rifle & Pistol Ass’n, Inc. v. Bruen in 2022, the Supreme Court vastly expanded individual protections provided by the Second Amendment. The Court determined that “the people” have a fundamental, individual right to bear arms for self-defense in the home and in public. In doing so, the Court rejected means-end scrutiny and created a new test in Bruen that focused squarely on constitutional text and regulatory history. The most recent case, United States v. Rahimi, decided in 2024, attempted to clarify the historical component of the new constitutional test. The Rahimi Court loosened the interpretative rigidity of the Bruen test but also cabined the scope of gun freedoms pursuant to the newly-minted Second Amendment individual right to bear arms.

Felon firearm bans were often referenced in dicta throughout the cases and as an example of a presumptively constitutional firearm regulation. The Court failed, however, to offer any further analysis or guidance on how and why these prohibitions were considered so. Thus, the federal courts that are currently confronting 18 U.S.C. § 922(g)(1) (“Section 922(g)(1)”) challenges, the federal statute prohibiting felon possession of firearms, are left struggling to determine whether the law is constitutional (facially and as applied), and they are split.

This Article contends that felonsdohave a right to bear arms under the recently announced individual rights interpretation of the Second Amendment. Felons constitute “the people” enumerated in the text of the Second Amendment. However, the justifications for Section 922(g)(1) and burdens imposed by the statute are unconstitutional, doing harm to the principle of equality.