The National Rifle Association and Second Amendment Foundation filed an amicus brief in United States v. Cordova, a case before the en banc Fifth Circuit Court of Appeals involving a challenge to the federal lifetime prohibition on firearms possession by felons under 18 U.S.C. § 922(g)(1).
The amicus brief, filed in support of neither party, urges the Court to adopt a dangerousness standard for disarmament challenges.
The brief provides an extensive historical analysis demonstrating that America’s tradition of firearm regulation supports disarming only dangerous persons—disaffected persons posing a threat to the government and persons with a proven proclivity for violence. From the colonial period through the nineteenth century, arms restrictions applied solely to people believed to present a risk of violence or armed insurrection. This tradition was reflected in the debates and proposed amendments at the Constitution’s ratifying conventions, and dangerousness remained the sole justification for disarmament throughout American history.
The brief further explains that there is no tradition of disarming peaceable citizens. Historically, nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained their right to keep and bear arms. Some laws expressly allowed or even required them to keep and bear arms.
Finally, the brief addresses the rationale the Fifth Circuit has recently adopted in disarmament cases: that the Founding-era practice of imposing capital punishment for some felonies establishes a tradition of permanently disarming every person convicted of a felony. Many offenses classified as felonies were not capital offenses, and there is no tradition of continuing to disarm felons who completed their sentences. Moreover, because other rights guaranteed by the Bill of Rights are not forfeited simply because an offense was historically a capital offense, using eligibility for capital punishment as the metric for permanent disarmament would subject the Second Amendment to specially unfavorable treatment relative to other constitutional rights, contrary to the Supreme Court’s instruction that it not be treated as a second-class right.
Please stay tuned to www.nraila.org for future updates on NRA-ILA’s ongoing efforts to defend your constitutional rights, and please visit www.nraila.org/litigation to keep up to date on NRA-ILA’s ongoing litigation efforts.
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