Second Amendment or Second Chance: The Constitutional Contours of Felon Disarmament 

By: Payton Sindermann           

           In many ways, the United States (U.S.) has found itself in the minority regarding citizens’ rights— specifically civilian gun ownership. The U.S. Constitution provides in its Second Amendment, “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[1] Only three countries in the world protect the right to bear arms in their respective constitutions.[2] Note that the U.S. has inspired other countries to adopt constitutional protections for gun ownership such as: Bolivia, Costa Rica, Colombia, Honduras, Nicaragua, and Liberia, but all of aforesaid countries have since rescinded their constitutional right to bear arms to their constituents.[3] In 2020, firearm-related injuries was the leading cause of death for people ages 1 to 19 years old in the U.S.[4] Evidently, the right to possess firearms remains a highly controversial and heavily litigated area of constitutional law. Recent Second Amendment litigation has focused on defining the scope of the right to keep and bear arms and the constitutional limits of firearm regulation.

            Pursuant to 18 U.S.C. § 922(g)(1), a person convicted of a crime punishable by imprisonment for a term exceeding one year may not possess, in or affecting commerce, any firearm or ammunition. Additionally, § 922(g) prohibits fugitives from justice, unlawful users of or persons addicted to controlled substances, and persons illegally or unlawfully in the United States from possessing or receiving firearms or ammunition..[5] More than 8,000 people are convicted each year for unlawful possession of a firearm under 18 U.S.C. § 922(g).[6] Approximately 90% of said cases arose from gun possession by a felon.[7] Although § 922(g)(1) may appear settled law, the federal courts of appeals are divided over whether the felon-in-possession prohibition is constitutional in all applications under the Second Amendment..[8]

            In New York State Rifle & Pistol Association, Inc., et al., v. Kevin P. Bruen, in his official capacity as Superintendent of New York State Police, et al., petitioners challenged the New York state law that required “proper cause” to carry a handgun outside the home for self-defense.[9] Petitioners claimed this was a violation of their Second and Fourteenth Amendment rights because law-abiding citizens with ordinary self-defense needs cannot legally be restricted from bearing arms.[10] In a 6-3 decision, the Supreme Court held “…that government regulation of conduct that ““the Second Amendment’s plain text covers”” must be ““consistent with this Nation’s historical tradition of firearm regulation”””[11] This case is seminal in the gun regulation arena because the Supreme Court produces a historical inquiry test instead of an interest balancing one that appellate courts are inclined to use.[12] However, “the Supreme Court has not squarely addressed the constitutionality of a felon-in-possession law but there has been brief discussion of it in some Second Amendment opinions.”[13]

            In United States v. Rahimi, a Texas man, Zackey Rahimi, possessed firearms while subject to a domestic-violence restraining order.[14] This was unlawful in accordance with 18 U.S.C. § 922(g)(8), which prohibits possession of firearms by persons subject to certain domestic-violence orders.[15] Rahimi argued it was unconstitutional to prohibit him from possessing a gun on the basis of his criminal history.[16] Here, the Supreme Court ruled the statute under which Rahimi was convicted under was facially constitutional, while also finding that Rahimi posed a credible threat to the safety of others.[17] The Supreme Court applied a historical inquiry test here and reasoned that the Court has had a tradition of disarming individuals who pose a clear threat of physical violence to another.[18]

            After the decision in Rahimi, where does this leave the U.S.? Certainly, this decision is not the end all be all to debates and litigation surrounding gun control. The Supreme Court and lower-level courts still have many questions to answer. Is it only “dangerous” felons that cannot bear arms? What is “dangerous”? Should the Supreme Court issue a test for dangerous? Should this test be left solely to the circuit courts? Is this ban applicable to defendants that did not receive a hearing? What about defendants that served time for over a year but were later found to be not guilty? Ultimately, the U.S. is going to be forced into a position to handle these questions especially since gun violence is the leading cause of death amongst the youth.[19] So, what is more important here, protecting the Second Amendment or the common good?

[1] U.S. Const. amend. II.

[2] Brennan Weiss et al., Only 3 Countries in the World Protect the Right to Bear Arms in Their Constitutions: The US, Mexico, and Guatemala, Bus. Insider (Nov. 22, 2022, at 03:50 ET), https://www.businessinsider.com/2nd-amendment-countries-constitutional-right-bear-arms-2017-10.

[3] Id.

[4] Preventing Gun Violence, the Leading Cause of Childhood Death, Nat’l Inst. Child Health & Hum. Dev., https://www.nichd.nih.gov/about/org/od/directors_corner/prev_updates/gun-violence-July2022 (last reviewed Dec. 11, 2025).

[5] Id. § 922(g)(2)−(3), (5)(A).

[6] Colter Paulson, The Second Amendment Permits the Disarming of “Dangerous” Felons, Sixth Cir. App. Blog (Aug. 30, 2024), https://www.sixthcircuitappellateblog.com/case-updates/the-second-amendment-permits-the-disarming-of-dangerous-felons/.

[7] Id.

[8] Dave S. Sidhu, Cong. Rsch. Serv., LSB11170, The Department of Justice Asks the Supreme Court to Review Constitutionality of Federal Prohibition on Felons Possessing Firearms 1−2 (2026), https://www.congress.gov/crs-product/LSB11170.

[9] N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 12−15 (2022).

[10] Id. at 15−17.

[11] Paulson, supra note 7.

[12] Id.

[13] Alex Rivenbark, The Limits of the Second Amendment, SCOTUSblog (July 10, 2026, 10:30 ET), https://www.scotusblog.com/2026/07/the-limits-of-the-second-amendment/.

[14] United States v. Rahimi, 602 U.S. 680, 686−88 (2024).

[15] 18 U.S.C. § 922(g)(8).

[16] Rahimi, 602 U.S. at 688-98.

[17] Id. at 693.

[18] Id. at 698-700.

[19] Preventing Gun Violence, supra note 4.