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Disarming the Dangerous: The American Tradition of Firearm Prohibitions


The Supreme Court elucidated in New York State Rifle & Pistol Association v. Bruen that a modern firearm regulation is constitutional only if the government proves that it is consistent with the nation’s historical tradition of firearm regulation. Lower courts are now exploring the historical tradition of firearm regulation to determine who can be barred from possessing firearms. The Third Circuit Court of Appeals became the first federal circuit court to address the issue post-Bruen, when a three-judge panel decided Range v. Attorney General United States. In Range, Bryan Range challenged a federal law that forever banned him from possessing firearms based on a nonviolent misdemeanor conviction in 1995. The Range panel upheld the ban, determining that the historical standard is not dangerousness, but whether the person’s actions evince a disrespect for the rule of law. The Third Circuit later reheard the case en banc and held the ban unconstitutional, because the government failed to prove that America’s tradition of firearm regulation supports disarming Mr. Range. The en banc court stopped short, however, of deciding whether dangerousness is the touchstone of disarmament laws.

This Article explains why dangerousness is the touchstone of disarmament laws. In addition to supplementing existing historical evidence proving that only dangerous persons may be disarmed, this Article explains that even the historical evidence provided by the Range three-judge panel supports the dangerousness theory, despite its contrary holding. By providing an overview of traditional firearm regulations, this Article concludes that to be consistent with the Supreme Court’s test in Bruen, a modern-day disarmament law may apply only to dangerous persons.