Introduction: Heller, McDonald, and Felons

For more than two centuries after the Constitution’s ratification, the Supreme Court of the United States largely refrained from defining the scope and meaning of the Second Amendment right to keep and bear arms.REF Many legal commentators and scholars used that silence to propound a jurisprudential theory asserting that the right was collective in nature and belonged to the citizenry as individuals only insofar as individual citizens were connected to the militia.REF In 2008 and 2010, the Supreme Court struck successive and devastating blows to this academic model with its decisions in District of Columbia v. HellerREF and McDonald v. Chicago.REF Together, these two opinions pronounced that the Second Amendment protects a right that is individual,REF fundamental,REF and made applicable to the states through the Fourteenth Amendment.REF

The majority opinions in both of these seminal cases utilized a very “history-centric” analysis to address questions of what, exactly, the Framers and ratifiers of the Second Amendment understood it to encompass.REF Even for Heller’s grammatical questions involving the amendment’s prefatory and operative clauses,REF the majority looked to their historical contexts to help make sense of their meaning.REF The Heller majority noted that its historical analysis of the Second Amendment was not exhaustive and indicated its awareness that the opinion left some inquiries about the amendment’s scope open to future debate,REF but the Court also purported to answer some vitally important questions about the foundational premises upon which the Second Amendment rests.REF

From a practical standpoint, the Court left few substantive guidelines for lower courts to follow in subsequent Second Amendment cases. It declined to state explicitly an appropriate level of scrutinyREF for future challenges to firearms restrictions,REF only going so far as to reject an “interest-balancing” approach.REF Perhaps most confusing for lower courts have been a few lines of dictaREF in Heller, which were repeated in McDonald, stating that the Court did not intend with its opinion to “cast doubt on longstanding prohibitions on the possession of firearms by felons,”REF which are “presumptively lawful.”REF The Court did not attempt to justify this presumption or its assertion that such prohibitions are long-standing in nature, even though both the presumption and this assertion appear to be contradicted by the reasoning employed throughout the opinions.REF

The Heller dicta have proven especially problematic for resolving a number of issues regarding restrictions on the ability to carry a firearm for self-defense. Nowhere is this more evident than with federal and state bans on firearm possession by felons convicted of nonviolent crimes,REF one of the most common restrictions on Second Amendment rights. Under current federal law, nonviolent felons fall into one of the nine categories of persons who are completely and (in most cases) permanently barred from firearm possession.REF The way for these persons to have their Second Amendment rights restored is for their convictions to be expunged, pardoned, or otherwise set aside under the laws of the jurisdictions where their cases were adjudicated.REF Currently, many states offer only limited mechanisms for the restoration of firearm rights for nonviolent felons,REF leading many such individuals to rely on gubernatorial pardons,REF which are increasingly difficult to obtain.REF For all practical purposes, there is no federal procedure by which those convicted of federal felonies can have their civil rights restored.REF

Given the Supreme Court’s emphasis in Heller and McDonald on the fundamental nature of the Second Amendment right, it does not seem to follow rationally that these extremely restrictive laws can be constitutional as applied to felons with no indications of a tendency toward future violence. On the one hand, the Court asserted that such restrictions are long-standing and presumptively lawful, a presumption that lower courts seem to have adopted reflexively without questioning or testing the premises underlying that assertion. On the other hand, the Court used an historical analysis of the Second Amendment that seems to contradict its designation of certain restrictions as “longstanding,” and its determination that the Second Amendment right is fundamental appears to preclude a presumption of lawfulness for any restriction, much less a total and permanent prohibition on possessing firearms.

Lower Courts’ Use of Heller’s Dicta to Undermine Its Core Promises

In an attempt to handle the tension between these two opposing facets of Heller and McDonald, federal circuit courts increasingly have used the few lines of “presumptively lawful” dicta as a “safe harbor” from which to foreclose any meaningful analysis in cases involving as-applied challenges to the federal firearms disability. Some, like the Eleventh Circuit, have done little more than quote Heller’s language as their sole analysis for dismissing as-applied challenges.REF Most, however, have adopted a two-step analysis to deal with the substance of these questions.REF First, the court asks whether the conduct burdened by the restriction falls within the scope of the Second Amendment protections.REF If the burdened conduct does fall within the scope of conduct that the Second Amendment was designed to address, the courts will apply some form of heightened scrutiny in deciding whether the restriction is constitutional as applied to the particular challenger.REF

In Heller and McDonald, the Supreme Court declined to articulate what standard of review lower courts should apply in deciding future Second Amendment cases. With few exceptions, the courts that have addressed the issue of restrictions for nonviolent felons have applied watered-down intermediate standards of review often similar to the very “interest-balancing” tests that Heller determined were inappropriate.REF

On the whole, the result has been extremely unfavorable for challengers to firearms restrictions.REF Many circuit courts have determined that the Second Amendment protects only the rights of law-abiding citizens to “keep and bear arms” and that possession of firearms by nonviolent felons therefore falls outside the scope of conduct protected by the amendment. In other words, the first prong is often transformed from a question of “protected conduct” into one of “protected class.”

The Fourth Circuit offered one of the clearest examples of this reasoning in Hamilton v. Pallozzi,REF holding “that conviction of a felony necessarily removes one from the class of ‘law-abiding, responsible citizens’ for the purposes of the Second Amendment.”REF Because the Pallozzi court determined that the label “felony” reflects the sovereign state’s assertion that a crime indicates “grave misjudgment and maladjustment,” the felon could never again be deemed “law-abiding” absent a pardon from that sovereign state.REF In the court’s view, the only relevant factor was whether the challenger’s criminal history contained an unpardoned felony: It would not consider any evidence of rehabilitation, the likelihood of recidivism, or the passage of time since the commission of the felony as bases for reclaiming the title of “law-abiding, responsible citizen.”REF

Even courts that, like the Third Circuit, originally left open the possibility that nonviolent felons might plausibly be able to rebut the presumption of lawfulness in an as-applied challenge have since come to shut that once-open door. In United States v. Barton,REF the Third Circuit initially determined that, while the challenger in this particular case could not show he was a nonviolent felon,REF a successful challenge might still be possible from a felon convicted of a relatively minor, nonviolent offense who could show either that he was no more dangerous than a typical law-abiding citizen or that sufficient time had passed since the felony conviction such that he no longer posed a threat to society.REF

Five years later, however, the Third Circuit reversed course in Binderup v. Attorney General,REF rejecting the claim that “the passage of time or evidence of rehabilitation will restore the Second Amendment rights of people who committed serious crimes.”REF Instead, the Binderup court determined that it would focus only on the seriousness of the purportedly disqualifying offense and whether it was sufficient to remove the challenger from the protected class of citizens for purposes of the first prong of the two-prong test.REF It further insisted the true justification for the disarmament of felons is not their likelihood of violent recidivism, but rather that they are “unvirtuous.”REF

A few circuit courts have left open the possibility that as-applied challenges from nonviolent felons may still be successful, but these circuits thus far either have declined to address that question directly or have determined that the firearms restriction in question passed a heightened level of scrutiny under the second prong. For example, in United States v. Skoien (Skoien II),REF the Seventh Circuit warned against interpretations of Heller that treat it as “containing broader holdings than the Court set out to establish” by reading it as containing an answer as to whether certain gun disabilities are valid.REF In that sense, at least, the Seventh Circuit has maintained the “presumptively” aspect of Heller’s “presumptively lawful” dicta. Unfortunately, the Skoien II majority then concluded that some categorical limits on fundamental rights are acceptable and that the challenger could not realistically claim he did not pose an ongoing risk of future violence no matter what offense he had committed or how much time had passed since the offense.REF

The Sixth Circuit, grasping onto the Seventh Circuit’s more moderate application of “presumptively lawful,” stands out as an anomaly in its handling of as-applied challenges to modern firearms restrictions. At least as it relates to other firearms restrictions, the court has molded an approach that seems much more consistent with the foundational premises of Heller and McDonald. The Sixth Circuit’s reasoning is also eerily reminiscent of the reasoning used by the Supreme Court in an analogous First Amendment case,REF making it a hopeful sign of possible future success for nonviolent felons wishing to regain their Second Amendment rights.

In Tyler v. Hillsdale County Sheriff’s Department,REF the en bancREF Sixth Circuit analyzed the question of whether the challenger, who was barred from possessing a firearm under Section 922(g)(4) of Title 18 for having been “committed to a mental institution,” presented a cognizable Second Amendment claim and how such a claim should be analyzed if it existed.REF The challenger, Clifford Tyler, had been involuntarily committed to a mental institution in 1986 for a period of less than 30 days.REF His commitment occurred as a direct result of acute depression brought on after his wife of 23 years cleaned out their bank account and left him for another man.REF Tyler was discharged, remained gainfully employed for the next 18 years, remarried, and did not suffer from another instance of mental illness or emotional instability.REF His doctor testified that Tyler did not show signs of currently suffering from mental illness or of abusing drugs or alcohol and instead characterized Tyler’s 1986 commitment as “a brief reactive depressive episode.”REF Nonetheless, federal law prohibited Tyler from purchasing or possessing a firearm, and Michigan law did not provide a mechanism through which his Second Amendment rights could be restored.REF Tyler argued that the Second Amendment precludes Congress from “permanently prohibiting firearm possession by currently healthy individuals who were long ago committed to a mental institution.”REF

Although the court was divided over its reasoning, the majority and concurring opinions reached the same bottom line: Even under the two-step framework, Tyler was not categorically unprotected by the Second Amendment, and the government had failed to meet its burden under a heightened level of scrutiny.REF

The Tyler court first denounced any use of the first prong that would interpret Heller as “invit[ing] courts onto an analytical off-ramp to avoid constitutional analysis.”REF Quoting from Skoien, the Sixth Circuit noted that Heller had explicitly left open questions regarding “what other entitlements the Second Amendment creates, and what regulations legislatures may establish.”REF Heller further “expressly declined to expound upon the historical justifications for bans on firearms possession by felons and the mentally ill,”REF and its “presumptively lawful” dicta should not be used “to enshrine a permanent stigma on anyone who has ever been committed to a mental institution for whatever reason.”REF It is therefore not correct, in the Sixth Circuit’s view, to give Heller’s presumption of lawfulness conclusive effect, because a presumption implies the possibility that an as-applied challenge could succeed under the right circumstances.REF

Performing its own historical analysis of the Second Amendment, the Sixth Circuit concluded that firearms disabilities for felons and the mentally ill were “presumptively lawful” not because those persons fall outside the historical purview of the Second Amendment right, but because the regulations can be presumed to satisfy some heightened standard of scrutiny.REF It then applied intermediate scrutiny as opposed to strict scrutiny, noting the near unanimous preference for this standard in courts assessing cases under Section 922(g).REF

The Sixth Circuit acknowledged that the government’s stated interests in protecting the community from crime and preventing suicide were not only legitimate, but compelling.REF Nonetheless, the court held that the government had not presented sufficient evidence to support the conclusion that people previously committed to mental institutions categorically and permanently constituted such an ongoing and heightened risk of perpetrating gun violence that it was reasonably necessary to bar them permanently from gun ownership.REF The government merely cited studies showing a need to ban those currently in the midst of a mental health crisis or only recently removed from commitments to mental health facilities from possessing firearms.REF

Finally, the Sixth Circuit noted what it called “the biggest problem for the government” in this case: Congress had already answered the question of whether it was reasonably necessary to bar people such as Tyler permanently from possessing guns.REF From 1986 to 1992, federal law offered a mechanism through which to obtain relief from Section 922(g) disabilities.REF Although Congress defunded the program, in 2008, it authorized federal grants for state background checks on the express condition that states created a relief-from-disabilities program.REF

History of Arms Prohibitions Does Not Support Assertions That Total and Permanent Firearms Disabilities Are “Long-standing”

The Sixth Circuit in Tyler understood Heller’s “presumptively lawful” language within its proper context: as dicta in a majority opinion unwilling to rigorously assess whether these assertions are consistent with history and enduring judicial doctrines. And while the Tyler court felt bound by the Heller and McDonald dicta, it did not cut off its own historical and judicial analysis in the process of following it. Rather, it determined that a particular state policy, though presumed lawful, was in fact unlawful.

With this effort in mind, how well does the Supreme Court’s other assertion—that of the firearm disability’s long-standing nature—hold up in light of similar historical and jurisprudential analyses? The answer appears to be “not very well at all.” Until very recently, the history of gun restrictions and prohibitions in the Western world has been significantly limited in comparison to the allegedly long-standing regulations cited in Heller. In short, permanent and complete bans on gun possession are more modern anomaly than they are ancient doctrine.

Rise and Fall of “Civil Death.” Western civilization is no stranger to the idea that those who commit serious criminal offenses may be punished by having certain civil rights stripped from them. Both the Greeks and Romans imposed states of “infamy” on citizens who committed offenses involving moral turpitude.REF This effectively rendered the person a noncitizen: He could no longer vote, attend public assemblies, hold public office, or make public speeches.REF In short, an infamous person was prohibited from participating in civic affairs.

After the fall of the Roman Empire, the punishment of infamy slowly morphed into the “civil death” laws of Medieval Europe.REF In England, it would form the basis for the attainder practices so reviled by the American colonists and later prohibited by the United States Constitution.REF Under English common law, a felony sentence carried three distinct legal disabilities: forfeiture of the felon’s property and possessions to the king or feudal lord; the corruption of the felon’s blood, which barred him from transferring or bequeathing his estate to his heirs; and an almost complete extinction of the felon’s civil rights.REF From the time of conviction—which carried a default capital sentence—to the carrying out of the execution, the felon was considered extra legem positus:REF For all practical purposes, in the eyes of society, he was already dead.REF

At first glance, this common-law practice may appear to serve as a foundation upon which to build an argument for a long-standing tradition of permanent firearms disabilities for felons.REF A closer inspection, however, reveals serious flaws with this theory.

First, and perhaps most persuasively, the Framers of the Constitution explicitly rejected both the origin and function of common-law civil deathREF by prohibiting bills of attainderREF for treason that punished the convict with forfeiture and the corruption of blood.REF

Second, the nature of a “felony” has changed dramatically in the past 300 years. Throughout the age of civil death laws, a felony conviction stood as an automatic death sentence.REF This is likely because felony charges were reserved originally for situations in which “it is…clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society.”REF Civil death was a transitional state between the felon’s sentence and his relatively swift execution, and the status of “dead as a matter of law” was an efficient way to settle a felon’s affairs before he became “dead as a matter of biology.”REF Further, because the convicted felon was soon to die, forfeiture of his property—arms or otherwise—and the loss of his civil rights hardly provide modern society with a solid foundation from which to analogize regarding the reacquiring of property or civil rights. Release back into society, much less the restoration of civil rights, was very rarely an option.

The meaning of a felony conviction in the age of modern firearms prohibitions bears little resemblance to the felony of Blackstone’s day, much less that of the earlier common-law civil death era.REF The growth of regulatory and nonviolent crimes punishable as felony offenses means that a much wider net is cast in which a much broader percentage of the population is caught.REF The increased focus on sentencing reform and the decreasing popularity of the death penalty mean that the vast majority of convicted felons today will reenter society.REF Quite simply, the felony of the common-law civil death era cannot be used with any semblance of intellectual honesty as a historical counterpart to the modern felony.

Historical Standards of Limited Disarmament to Prevent Imminent Violence. The history of specific arms prohibitions hardly fares better as a foundation on which to stake claims of the “longstanding” nature of categorical and permanent firearms disabilities. Rather, both English common law and the overwhelming weight of American jurisprudence before the 1960s support a much more limited premise: Where the facts and circumstances give specific reason to believe that a person will likely cause imminent unlawful harm to others, he may be disarmed until he assures the community that he does not pose a violent threat. Even then, exceptions ought to be made for limited keeping of arms in self-defense.

One of the earliest alleged “arms control” measures in the Western world was the Statute of Northampton, a medieval law under which a person could not “go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.”REF Despite attempts to use this statute to justify modern disarmament of nonviolent felons (and gun control measures generally),REF there are several gaping holes in the logic of such an assertion.

First, by the time of the 1689 English Declaration of Rights, this statute was rarely enforced, and its violation had long been demoted to a fineable offense.REF This stands in stark contrast to the severe punishments meted out for the violation of modern-day felon-in-possession statutes.REF Along these same lines, the Statute of Northampton was limited in scope to the possession of arms outside the home and in no way constituted a permanent, complete prohibition on possessing firearms in the home for self-defense.

Second, the statute could be violated only when one acted “malo animo”—that is, when the person intended to ride about those places armed “in such a manner as will naturally cause a terror to the people.”REF This is not equivalent to the modern disarmament of felons under which any use or possession of certain weapons is unlawful, not just those uses intended to cause fear of unjustified violence.

Third, the Statute of Northampton acted primarily as a preventive measure. If reasonable fears of violence existed, the person responsible for causing those fears could be required to pledge sureties of peace.REF It was only after the would-be troublemaker refused to give surety or broke his pledge of surety that he faced punishment—the forfeiture of his armor and an indeterminate prison sentence “at the pleasure of the king.”REF Moreover, this punishment was imposed only for an unlawful use of arms post-surety, meaning that the use of arms in reasonable self-defense was permitted even for persons who were considered risks for future unlawful violence.REF Further, there was no prohibition on the post-imprisonment purchase of arms and armor to replace those forfeited for a violation of the statute.REF This is consistent with the common law’s general aversion to arms disabilities and still provided “courts with a large stick with which to reduce the risks to society from a free person who nevertheless posed a threat of breaching the peace with arms.”REF

The 1689 English Declaration of Rights provides perhaps the closest equivalent of a pre-20th century disarmament of criminals who were not sentenced to death. While the Declaration explicitly recognized a right for Protestant subjects to bear arms, a contemporaneous law took steps to disarm Roman Catholics,REF who were seen as presumptively treasonous supporters of the dethroned James II.REF Once again, however, this law stopped far short of providing a rationale that could be used to support modern firearms restrictions imposed on nonviolent felons. Directly underlying this disarmament of Catholics was a somewhat justified fear of possible subversion of the newly crowned Protestant co-monarchs, William and Mary.REF The disability was even further removed from a broad-scale felon disarmament than was the Statute of Northampton: It imposed no arms restrictions on violence-prone Protestants and was founded on concerns related not to violence broadly, but to specific insurrectional violence that could destabilize the entire kingdom.

Additionally, the disability for Catholics was strikingly limited in comparison to modern firearm prohibitions levied on nonviolent felons. A Catholic could avoid disarmament by subscribing to a statutory declaration against popery and swearing allegiance to the Protestant king,REF and if the Catholic refused to make such a declaration, the law recognized that even an avowed Catholic supporter of James II had a natural and legally recognized right to self-defense.REF Therefore, while he could not stockpile weapons akin to a home arsenal, he could “have or keep…such necessary weapons…for the defence of his house or person.”REF

In similar fashion, some American colonies undertook to disarm suspected British loyalists in the early stages of the Revolution. The Continental Congress recommended that local authorities disarm all persons “notoriously disaffected to the cause of America,”REF and this recommendation was implemented by Massachusetts, Virginia, and Pennsylvania.REF While this disarmament lacks the religious underpinnings seen in the English disarmament of Catholic citizens, neither restriction can be understood outside its proper context as an enactment directed against a reasonably distrusted group during a period of domestic upheaval. In the words of noted Second Amendment scholar C. Kevin Marshall, “[T]o the extent that one can distill any guidance from the English disability and the Revolutionary disarmament, it would seem at most to be that persons who by their actions—not just their thoughts—betray a likelihood of violence against the state may be disarmed.”REF

Finally, the next great American upheaval—the Civil War—did not produce anything close to the widespread disarmament of rebellious individuals seen in previous eras. At a time when “Americans were more disunited, more distrustful of each other, and more thoroughly polarized in their competing visions of the common good than at any other time in American history,”REF there were indeed occasional instances of disarmament by Union officers in rebellious or deeply divided states known for harboring Confederate sympathizers,REF but after the conclusion of the war, Congress took great pains to protect the Second Amendment rights of newly freed southern blacks against attempts by white militias to disarm them.REF

Modern Departure from Historical Limitations. Prior to the 1930s, states unanimously avoided imposing restrictions on the possession of firearms, focusing instead on the regulation of how and where those firearms could be carried.REF Laws generally sought to prohibit or restrict the concealed carrying of “short guns” and almost never regulated the carrying of “long guns.”REF The first definitive federal attempt to regulate the actual possession of firearms came with the 1934 National Firearms Act, which did not ban possession of certain weapons per se but did impose a hefty tax on transfers of machine guns, short-barreled rifles, and short-barreled shotguns.REF

The Federal Firearms Act of 1938 (FFA) set the groundwork for current federal firearms disabilities, prohibiting the transfer and sale of firearms to certain classes of persons, including those convicted of a “crime of violence.”REF This first complete categorical ban on the receipt of firearms by a class of felons was upheld by the First and Third Circuits in 1942, with both courts relying heavily on the collective-rights view of the Second Amendment explicitly rejected in Heller.REF

It was almost four decades before Congress repealed the FFA and implemented the Gun Control Act of 1968 (GCA), which extended the disability to include all felons, not just those convicted of “crimes of violence.”REF The GCA also, for the first time in American history, prohibited not just the unlawful receipt of firearms, but their possession as well.REF Never in all of this time—and certainly not since Heller and McDonald—has the Supreme Court directly addressed this disability, either generally or as applied to nonviolent felons.

Should the Court analyze the question with a continued emphasis on guidance from and analogy to history, there is very little from which it could derive support for Heller’s assertion of the long-standing nature of modern firearms disabilities for nonviolent felons. Rather, these permanent and complete bans are recent, severe departures from historical precedent, ushered in during a time of since-dismissed assumptions of a weak and collective Second Amendment right. Actual long-standing precedent in America and pre-Founding England supports far less drastic measures of disarmament. In this respect, a modern firearms disability “can be consistent with the Second Amendment to the extent that…its basis credibly indicates a present danger that one will misuse arms against others and the disability redresses that danger.”REF

Given this historical preference for assessing actual danger before imposing arms prohibitions, the Fourth Circuit wrongly rejected evidence of rehabilitation, the likelihood of recidivism, and the passage of time as bases from which a person could challenge laws prohibiting his possession of firearms. These categories are precisely those utilized in every historical context for firearms disabilities. They are, quite simply, the longstanding markers of the right to keep and bear arms for self-defense: Where they exist, so does the right; where they are absent, so is the right.

Packingham’s First Amendment Framework Undermines Interpretations of Heller’s “Presumptively Lawful” Language

If modern gun prohibitions for nonviolent felons are not long-standing, can they at least be upheld under a doctrine of their presumptive lawfulness? On many occasions, courts and commentators have considered the First and Second Amendments as using analogous frameworks for constitutional jurisprudence.REF Notably, the Seventh Circuit utilized the First Amendment framework in a Second Amendment context just one year after the Supreme Court decided McDonald, ruling against Chicago’s complex and arduous licensing process.REF For this reason, the Supreme Court’s recent unanimous decision in a First Amendment case may evidence a need for many lower courts to reevaluate their interpretations of Heller’s “presumptively lawful” language.

In Packingham v. North Carolina,REF the Supreme Court considered the extent to which a state could constitutionally restrict the First Amendment rights of registered sex offenders even after they completed their sentences. A North Carolina statute prohibited these particular felons from accessing social networking sites, which it defined broadly to include far more than traditional forums like Facebook.REF The petitioner was convicted of violating this statute after a police investigator discovered his mundane Facebook postings, even though the state never alleged that the petitioner used the website to contact minors or engage in other illicit activity.REF The petitioner challenged his conviction on the grounds that the statute unconstitutionally restricted his First Amendment rights.

The Court reiterated the First Amendment significance of the “vast democratic forums of the Internet” and singled out social media in particular as offering “relatively unlimited, low-cost capacity for communication of all kinds.”REF It did not venture into a traditional analysis of the First Amendment’s precise relationship to the Internet, determining simply that it should “exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks” accessible online.REF

Guided by this self-imposed caution, the Court struck down the statute, holding that even if it assumed the statute was content-neutral and therefore subject only to intermediate scrutiny, it failed to meet this standard. Under intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.”REF For First Amendment purposes, this means that a law must not “burden substantially more speech than is necessary to further the government’s legitimate interests.”REF

Further, government may not “suppress lawful speech as the means to suppress unlawful speech.”REF Under this standard a state presumably could enact specific, narrowly tailored restrictions on a sex offender’s use of the Internet, like statutes prohibiting them from using websites to contact or gather information about a minor. It could not, however, entirely foreclose a sex offender’s access to social media on the chance that he might use versatile websites to engage in such conduct.REF

The Court acknowledged that states certainly have a legitimate interest in protecting children from sexual predation, “a most serious crime and an act repugnant to the moral instincts of a decent people.”REF Legislatures need not sit idly by and allow evils to occur, and they can pass laws to protect citizens from sexual assault and abuse.REF But the existence of a legitimate, compelling state interest “cannot, in every context, be insulated from all constitutional protections.”REF

A cornerstone principle of the First Amendment is that “all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”REF Social media websites—including the nontraditional forums incidentally prohibited under the law—are some of the most powerful and easily accessible means available to private citizens to express their views.REF By prohibiting sex offenders from accessing this modern public square, with its principal sources for news, employment opportunities, speech, and other exploration of “the vast realms of human thought and knowledge,” North Carolina’s statute was “unprecedented in the scope of First Amendment speech it burdens.”REF

Interestingly, the Court expressed an unfavorable opinion of collateral consequencesREF in general. Although it did not elaborate or give any indication of a future willingness to readdress the constitutionality of these post-conviction “civil remedies,”REF it noted “the troubling fact that the law imposes severe restrictions on persons who already have served their sentences and are no longer subject to the supervision of the criminal justice system.”REF Without expressly addressing the inherent tension between collateral consequences and the jurisprudence regarding the rights of convicted criminals,REF the Court recognized that it is “unsettling to suggest” that Internet access could be so greatly restricted for felons after the completion of their sentences.REF

The Court’s Packingham analysis, if distilled to a basic formula applicable to all fundamental rights, is essentially this: Statutes infringing on the exercise of fundamental rights must be specific and narrowly tailored to further a compelling—or at least an important—government interest. A law categorically foreclosing access to the most powerful and easily accessible means of exercising the fundamental right, even if applicable only to a subset of citizens who are most prone to abusing the exercise of that right, cannot pass that test.REF

If these distilled Packingham principles are applied to firearm restrictions, it would seem that states and the federal government cannot impose broad, categorical, and permanent disabilities on the possession of all firearms, regardless of a compelling government interest in public safety. Instead, restrictions on the fundamental right to keep and bear arms must be specific and narrowly tailored to address public safety concerns. At the very least, the Packingham principles point any Second Amendment analysis back to the historical approach of restricting gun possession for a limited subset of persons who pose specific and definable risks of future violence and only for such a time as that risk continues to exist.

Just as statutes may not substantially burden more speech than is necessary by foreclosing large swaths of Internet activity to those who have proved themselves likely to victimize others with that activity, neither may statutes substantially burden the Second Amendment rights of those who have not evidenced violent behaviors as a means of curbing gun violence generally. This is consistent with McDonald’s rejection of arguments maintaining that the Second Amendment must be treated differently than other provisions of the Bill of Rights are treated because guns are dangerous.REF The right to keep and bear arms certainly has public safety implications—but so does the right to free speech, as evidenced by the restrictions North Carolina sought to impose on that right for sexual predators.

This framework, should it be applied to analogous post-sentence-completion Second Amendment restrictions, would also vindicate the Sixth Circuit’s reasoned historical analysis in Tyler. Both Tyler and Packingham deal with comparable restrictions on Section 922(g)(1)’s ban on gun possession by felons: Tyler in its analysis of the same prohibition for a different class of persons and Packingham in the sheer breadth and scope of a law seeking to foreclose principal means of exercising a fundamental right. Both opinions connect the legitimacy of restrictions on fundamental rights first back to the historical limitations on the particular right and then outward to the effectiveness of those restrictions in protecting the public. Both opinions exhibit a general disfavor toward broad, categorical, or permanent restrictions on fundamental rights, even for those who reasonably deserve closer scrutiny before exercising those rights. Both opinions, in that way, also undermine interpretations of Heller’s dicta upon which so many lower courts have thus far relied.

The Second Amendment right, like most other enumerated rights, is not unlimited.REF A comprehensive and meaningful analysis of constitutionally sound policies for regulating the possession of firearms by nonviolent felons is beyond the scope of this paper, but it is not unreasonable to suggest that some restrictions may be imposed in this regard just as Packingham allowed for the possibility of more narrowly tailored restrictions on a sex offender’s First Amendment rights. At the end of the day, however, the current permanent federal firearms disability for nonviolent felons—as well as those implemented in many states—cannot survive under a Packingham-esque framework, and it is Packingham’s framework that appears to provide the most stable basis for building on Heller and McDonald while still remaining consistent with two centuries of constitutional jurisprudence.

Conclusion

The Supreme Court clarified the basic scope of the Second Amendment right in Heller and McDonald. It is fundamental to the ordered scheme of American liberty and applies to individuals in a capacity unconnected to militia service. At its core, it is as much concerned with the private, natural right of self-defense as it is with safeguarding against tyranny in a public context. It is not an unlimited right, and the limitations of its protections are generally consistent with the framework used in First Amendment analyses. It is only through the lens of these foundational premises that Heller’s “longstanding and presumptively lawful” dicta ought to be viewed.

When these lines of dicta are placed in their proper context, viewed in light of historical guidance and precedent from analogous frameworks, it is difficult to make the words mean what many lower courts have interpreted them to mean. They are not “analytical off-ramps” from which politically desirable conclusions can be assumed without justification. Rather, they are nothing more than clear markers of the limitations the Supreme Court placed on itself during its initial foray into the uncharted territory of complex Second Amendment jurisprudence. Given the core principles of Heller and McDonald, the Court’s own framework for analyzing analogous rights, and the evident historical scope of firearms restrictions, it does not appear that these clear markers are permanent fixtures for future Second Amendment battles.

—Amy Swearer is a Legal Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. Special thanks are owed to Professors David Kopel and Nelson Lund for their gracious advice and comments during the review of this paper.