The Odious Intellectual Company of Authority Restricting Second Amendment Rights to the 'Virtuous'

Abstract

To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes. The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article shows that reliance on this theory is discredited outside the context of the Second Amendment. Modern reliance on the theory, outside the context of firearms rights, has been very infrequent and has been used to validate odious statutes, in cases no longer good law. The unsound judicial effort to derive the validation of these firearms bans from Founding-Era firearms restrictions builds on erroneous premises. The Founding-Era restrictions, detailed in this article, were tailored to the circumstances and do not provide a foundation for the broad, essentially permanent bans that federal law provides and that courts typically validate.