Skip to main content
Unpublished Paper
Arming Ex-Felons with Constitutional Protections: The Potential Impact of District of Columbia v. Heller on Felon Firearm Possession Bans
ExpressO (2009)
  • Winston P Hsiao, University of California - Los Angeles
In his majority opinion of District Columbia v. Heller, Justice Scalia stated that the Court’s decision would not cast doubt on the longstanding constitutionality of state and federal gun control laws that ban ex-felons from possessing firearms. Subsequent lower court decisions have taken Scalia’s dicta as gospel and have cursorily affirmed felon possession bans with little, if any, constitutional analysis. By examining the chief rationales behind these laws, with Heller in mind, this paper asserts how, contrary to Scalia’s opinion, the constitutional underpinnings of felon gun control laws should not be left wholly unaffected by Heller. The first rationale questioned in this paper is the “civilly dead” rationale which explains that through the commission of their crimes, ex-felons have rendered themselves “civilly dead” and not part of the “virtuous citizenry” entitled to bear arms. However, this hinges on the conception of a right to bear arms as a civic or political right; a privilege that is not inherent, but rather, one that is defined and limited by one’s place in the civil polity. This theory has enjoyed considerable mileage, but it is difficult to reconcile with Heller’s holding that the Second Amendment is inextricably tethered to the inherent right of self-defense; an essential right that should transcend civil standing. A more compelling and relevant rationale for felon possession laws is a concern for public safety. However, the rational relationship between the regulation and the legitimate government end starts to break down when dealing with the dozens of blanket state laws that do not make a distinction between felons convicted of violent crimes and those who were not. While being wildly overinclusive, these blanket laws have survived constitutional challenges under a highly deferential rational basis review. But the constitutional vitality of these decisions is also under question after Heller. Scalia’s supposed stance on felon possession bans is contradicted by his equally compelling dicta that seems to reject a rational basis review of gun control laws in favor of a heightened level of scrutiny. These troublingly overinclusive laws would struggle to survive such a heightened standard. To be sure, it may be argued that Scalia meant to foreclose application of constitutional standards on felon possession bans altogether. But this stance would then rely on the “civilly dead” rationale to argue that felons are outside the scope of Second Amendment protections. Even if one contends that the “civilly dead” rationale survives the Court’s reasoning in Heller, proper application of the term “virtuous citizenry” should distinguish between violent and non-violent felons, and thus, the overinclusiveness of blanket bans are equally troublesome under the “civilly dead” rationale as it is under a constitutional balance test.
  • Heller,
  • 922(g),
  • felon firearm possession
Publication Date
March 19, 2009
Citation Information
Winston P Hsiao. "Arming Ex-Felons with Constitutional Protections: The Potential Impact of District of Columbia v. Heller on Felon Firearm Possession Bans" ExpressO (2009)
Available at: