By: Anthony J. Zarillo III*
Abstract
The scope of government restrictions on the sale, possession, and use of firearms is currently one of the most hotly contested political issues facing the United States. Opponents of gun control legislation argue that stringent government restrictions on firearms violate the Second Amendment’s guarantee that “the right of the people to keep and bear Arms, shall not be infringed.” In contrast, proponents of gun control legislation argue that vigorous restrictions on firearms are essential to maintain public safety and curtail gun violence.
Despite being at the forefront of political debate, the Supreme Court speaks infrequently on the scope of the Second Amendment, having only published three Second Amendment opinions. Because of the Court’s silence on the scope of the Second Amendment, the circuit courts of appeals have struggled with Second Amendment issues.
One such Second Amendment issue that has confounded the circuit courts of appeals is the validity of as-applied challenges to 18 U.S.C. § 922(g)(1), the federal law that makes it unlawful for persons convicted of a felony to possess, purchase, or sell a firearm. Every circuit court has upheld 18 U.S.C. § 922(g)(1) on its face. A circuit split, however, continues to persist on the issue of whether a convicted felon can challenge the law as unconstitutional when applied to the individual’s specific circumstances.
This circuit split has led to inconsistent application of § 922(g)(1). Because the circuit split surrounding § 922(g)(1) leads to inconsistent application of the felon-in-possession prohibition, as-applied challenges should not be entertained. Not only is this consistent with the Supreme Court’s Second Amendment jurisprudence, but as-applied challenges should also always fail the two-step analytical framework used by most circuits. Furthermore, by not entertaining as-applied challenges, 18 U.S.C. § 922(g)(1) will be applied consistently and fairly across the United States.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2022.