“Refining the Dangerousness Standard in Felon Disarmament”

The title of this post is the title of this essay recently posted to SSRN and authored by Jamie G. McWilliam. Here is its abstract:

For a regulation of the Second Amendment right to be upheld, Bruen requires a showing of historically analogous laws.  In the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous, such as Loyalists, Catholics, and Blacks.  While the theme of dangerousness within these laws is strong, their prejudicial nature is concerning.  How can a court rely on them without implicitly importing a prejudicial analysis?

This essay argues that the takeaway from these historical analogues should be a broad theme of dangerousness, rather than the particular conceptions embodied therein.  Instead, to determine the scope of the dangerousness standard, courts should look to the principles embodies by the Second Amendment itself — in particular, defense against immediate personal violence.  Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against — i.e., who have perpetrated physical violence — should be disarmed.  This standard may defend against potentially prejudicial discretion, while simultaneously upholding Second Amendment rights and protecting our community.