The federal prohibition on convicted felons possessing guns is in line with the Second Amendment.
That’s the conclusion reached by the judge who recently ruled the ban on those under felony indictment receiving guns was not. Judge David Counts of the U.S. District of Western Texas found that contrary to the indictment ban, the convicted felon ban survived scrutiny under the Supreme Court’s new Bruen standard.
“Bruen did shake up the legal landscape,” Counts wrote in his ruling. “And the Court believes that faithfully following Bruen’s new framework casts doubt on some firearm regulations. But the regulation in this case is not one of them.”
The ruling is the first to deal with the federal prohibition on felons having guns. Counts’ analysis of the issue and his framework for upholding the law could prove to be influential as other courts grapple with how to apply Bruen‘s text-and-tradition standard to American gun laws.
Earlier this month, Counts found there was no gun law in the founding era that could be reasonably viewed as a historical analogue as Bruen requires. Unlike Judge Timothy DeGiusti of the Oklahoma Western District Court, who found the indictment ban was relevantly similar to 19th Century gun-carry “surety” laws and constitutional, Counts struck down the law. Counts made a similar argument for the convicted felon ban, which wasn’t created until the mid-20th Century, before offering up a potential answer to how it could still be constitutional.
“So even with a longstanding general concern for public safety, history lacks direct examples about felons specifically,” Counts wrote. “But just because there are no straightforward examples does not mean the Court’s historical inquiry stops there.”
Judge Counts argued the key to upholding the felon ban was not in finding a gun law that matched it, but a historical interpretation that limited the scope of “the people” the Second Amendment guarantees gun rights for. He noted the Supreme Court’s ruling in the landmark Second Amendment Heller decision said “the people” is a term that “unambiguously refers to all members of the political community, not an unspecified subset.”  He said that was a change from a previous decision where it mean “persons who are part of a national community.”
“So in effect, Justice Scalia narrowed the definition of ‘the people’ to those with the rights of the ‘political community,'” Counts said. “Heller’s definition then implies that ‘the people’ means only those with political rights.”
He then argued the way the country regulated other constitutional rights guaranteed to “the people” during the founding era would be a legitimate analogue for regulating gun rights.
“[I]f the meaning is the same throughout the Constitution, other constitutional provisions enshrining rights or powers to ‘the people’—and critically, who can be categorically excluded from ‘the people’—provide similar historical analogues,” he said.
He cited restrictions against felons voting and inciting violence as examples of areas where rights reserved to “the people” were similarly denied.
“Indeed, there was a ‘longstanding’ historical tradition from the time of ratification that those convicted of a crime could be excluded from the right to vote,” Counts wrote. “For example, one year after the Second Amendment’s ratification, Kentucky’s Constitution stated, ‘[l]aws shall be made to exclude from . . . suffrage those who thereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors.’ Vermont’s Constitution followed one year later, authorizing the removal of voting rights from those engaged in bribery or corruption during elections. As of 2022, only two states and the District of Columbia do not restrict felons’ voting rights.”
Ultimately, he found the felon ban fits into the tradition of gun regulation in the United States.
“Felons are those who have abused the rights of the people. And as outlined above, this Nation has a ‘longstanding’ tradition of exercising its right—as a free society—to exclude from ‘the people’ those who squander their rights for crimes and violence,” Counts said. “Consistent with Heller and Bruen, the Second Amendment should be no different here.”
