Washington Post Gets It Almost Right About Restoration of Second Amendment Rights

Last week brought yet another installment in the ongoing saga of The Washington Post’s (WAPO) pivot toward “individual liberties and free markets” in its opinion section. This time, WAPO published an editorial by two law professors who argue the government should resume funding a provision of federal law that allows the U.S. attorney general (AG) to grant relief from federal firearm disabilities on a case-by-case basis.

That authority remains on the books but has been inactive since1991, when the firearm prohibitionists at the Violence Policy Center released a “report” claiming some individuals granted relief later reoffended. Congress responded to the report by passing language in bills funding the ATF, the agency within the Department of Justice (DOJ) the AG had chosen to process the petitions, prohibiting use of any funds for that purpose.

The issue is now back in the news because the Trump DOJ recently began reviewing petitions under the statute through the Office of the Pardon Attorney. This was a clever way to get around the funding rider, which by its terms applies to ATF, not all of DOJ (the WAPO article gets that particular detail wrong). Recent news reports indicate a former attorney within that office is now claiming she was fired because she refused to recommend that actor Mel Gibson be granted restoration. The basis for Gibson’s federal firearms disability is a 2011 conviction that fell under the heading of a “misdemeanor crime of domestic violence,” one of about a dozen categories of events that trigger a presumptive lifetime ban on firearm possession.

The professors admit that the categories include people who, especially over time, would not be demonstrably dangerous and who's ongoing Second Amendment prohibitions would likely not survive scrutiny under recent U.S. Supreme Court caselaw. On those points, at least, they are correct.

But they also believe the availability of relief might insulate these admittedly over-broad categories from further constitutional challenge. Thus, while they speculate that making relief available “is likely to lead to a handful of fatalities,” it’s better than the alternative of “[t]housand[s] more people … d[ying] each year if the Supreme Court strikes down wholesale the possession prohibitions … .”

Without belaboring the point, this melodramatic analysis overestimates the value of the federal scheme of prohibited persons and mandatory background checks for retail firearm purchases, which is routinely ignored and circumvented by the highest-risk offenders.

To be clear, NRA-ILA supports a mechanism for prohibited persons to petition for relief from firearm disabilities. And it seems the Trump administration has found a workable legal route for that process, even if DOJ employees might be prone to err on the side of denial. That at least is as positive start.

We disagree, however, that the ability to petition for relief somehow excuses over-broad, ahistorical prohibited person categories for which there is no similar precedent dating back to the founding era, as Supreme Court precedent requires.

Properly construed, that precedent also requires the government to carry the burden of proof in the first instance that a person who is prohibited from firearm possession poses an enhanced risk of physical harm to self or others. The scheme the professors contemplate shifts that burden to the individual who was unconstitutionally deprived of his or her rights. That is a violation of due process, something law professors used to (at least) believe was important.

One reason unconstitutional, over-broad prohibited person categories found their way into American law is because the legal elite of the 20^th Century promoted the false “consensus view” that the Second Amendment didn’t protect individual rights at all. That view, and the gun controllers’ fallback position that Second Amendment rights could be subordinated to states’ rote, unsubstantiated assertions of the public safety imperative of their laws, have been repudiated by the high court. This should lead to a long overdue reckoning.

We commend the Trump administration for its proactive approach to this important issue and wish Mr. Gibson well in his own attempt to obtain restoration. We know of no fundamental civil right other than the Second Amendment that is permanently lost for a misdemeanor conviction.  

We also encourage WAPO to continue these experiments in advocating for Second Amendment rights. Maybe, in time, they’ll figure it out.