The Power to Regulate Dangerous Tories and Mulattoes

In United States vs. Rahimi, the Fifth Circuit court recently invalidated a conviction for unlawfully possessing a fireram, based on the defendant being the subject of a civil domestic restraining order. The court ruled that while there were historical precedents preventing convicted felons from possessing firearms, there was no historical analogue for prohibiting firearms to people not convicted of a crime. The court rejected the Government's argument that there were many examples of legislatures prohibiting gun possession by slaves, Native Americans, Loyalists and free Blacks on the ground that there status made them dangerous. The court found such an argument to be "repugnant." A wave of schadenfreude swept through the Gun Rights Folk seeing how liberals were caught making "racist" arguments of their own.

-oOo-

Not so fast. The Government has a point. The perception that Blacks are per se "dangerous" is a racist stereotype; however the power of government to prohibit/preclude a danger is a distinct issue. The difference is shown by that law which prohibited Tories from having guns. That was hardly based on anti-Anglo-Saxon racism. It was based on the fact that the Tories were hostile to American independence. Playing the race card on this issue is a dead end. It is better to meet the issue head on and not try to escape through the rabbit hole of "isms"

All governments clearly have the power to seek to prevent harms from arising; i.e. to pass legislation based on calculated dangers. No one can dispute the legitimacy of laws prohibiting convicted felons from possessing firearms. Those laws are not based on the abstract fact of a conviction but on the probabilistic determination that a person who has committed a crime presents a risk that he will do so again and therefore that it is dangerous to allow him to possess a firearm.

Therefore the question becomes: does "shall not infringe" mean that the government can pass NO law prohibiting possession of a gun? I.e. that the Second Amendment prohibits prohibiting convicted felons from possessing them? That absolutist argument will not pull out of the station; I can guarantee that.

Accordingly, the argument that has to be made is (1) that there is an analog for prohibiting guns to "dangerous" people but (2) the XIV Amnd. and Equal Protection Clause require that the prohibition be based on demonstrable, tangible facts and not on "profiles" or "generalized propensities."

Alternatively, or in tandem, that argument can be made that EXCLUDING race-based prohibitions; the common law ONLY forbade weapons to convicted felons and/or lunatics. But just don't play the librul 'racism' card as much as it might be fun to do so.


©