Two major gun-rights groups have filed an amicus brief in a critical Second Amendment lawsuit urging the 5th Circuit Court of Appeals to adopt a “dangerousness” standard to challenges of lifetime federal firearms bans.
On October 21, the Second Amendment Foundation and National Rifle Association filed the brief in United States v. Cordova, a challenge to the law placing a lifetime ban on gun ownership and possession by felons, even nonviolent ones. The brief was filed in support of neither party in the case, but to ask the court to set the new “dangerousness” standard.
The case has been returned to the 5th Circuit after the court granted rehearing en banc and vacated an earlier panel ruling. The SAF/NRA brief urges the court to hold that historical tradition supports disarming only dangerous persons—those with a proven proclivity for violence or who pose a threat to the government—not every person convicted of a felony.
As the groups pointed out in the brief, colonial and Founding-era restrictions targeted the dangerous. Militia laws required able-bodied men to keep arms and contained no exemption for prior nonviolent convictions, and some statutes even expressly protected criminals’ arms from seizure.
In a news release announcing the filing, SAF Executive Director Adam Kraut said that there is simply no tradition of permanently stripping the right to keep and bear arms from peaceable citizens, including nonviolent felons who completed their sentences.
“The 5th Circuit should make clear that dangerousness, not the mere existence of a felony conviction, is the standard,” Kraut said. “Peaceable Americans who have paid their debt to society should not be forced to surrender their right to keep and bear arms for the remainder of their lives.”
According to an NRA-ILA news report, 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, the brief argues that 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.
Ultimately, the brief asked the court to develop the new “dangerousness” standard to protect the Second Amendment rights of those who shouldn’t be deprived of those rights.
“Our Nation’s historical tradition of firearm regulation supports disarming only dangerous persons,” the brief concluded. “No tradition supports disarming nonviolent felons—even when the offense was punishable by death at the Founding. To ensure fidelity to ‘the scope [the Second Amendment] was understood to have when the people adopted [it],’ the Court should adopt a dangerousness standard for disarmament challenges.”
