Why Can't Martha Stewart Have a Gun?

Abstract

The Supreme Court in District of Columbia v. Heller (2008) stated in dicta that "longstanding prohibitions on the possession of firearms by felons" are "presumptively lawful" under the Second Amendment. It cited nothing. Similar dicta in the D.C. Circuit decision in Heller and in United States v. Emerson (5th Cir. 2001) is similarly unsubstantiated. The federal prohibition bars anyone convicted of a crime punishable by more than a year in prison from possessing any firearm, for life. It thus covers many persons who pose no risk of physically harming anyone, much less with a gun-such as Martha Stewart, convicted of several felonies in 2004 in connection with dubious stock transactions.

This federal prohibition is not "longstanding." It dates from 1968. The preceding federal disability was narrower, and even that dates only from 1938. Moreover, bans on convicts possessing firearms were unknown among the States before World War I, and neither the common law nor the English arms right at the time of the Founding supports current federal law. But the historical evidence, taken together with the development of the Uniform Firearms Act in the 1920s, does support restrictions on the Second Amendment rights of someone convicted of a "crime of violence." That term, which the UFA developed and Congress borrowed in the 1930s and employed in the Federal Firearms Act until 1961, designates a crime ordinarily committed with the aid of firearms. The historical evidence further suggests distinctions between keeping and bearing, and concealable and non-concealable firearms.

Keywords: Second Amendment, keep and bear arms, Heller, Emerson, felon, Uniform Firearms Act, Martha Stewart