United States v. Pierre

In January, the Cato Institute filed an amicus brief in support of Mr. Pierre’s petition asking the court to decide en banc whether a criminal defendant may raise an as-applied Second Amendment challenge to the federal “felon-in-possession” firearm law. The Eleventh Circuit vacated its earlier decision and held the matter pending the outcome in a similar case, but last month, a panel affirmed Mr. Pierre’s conviction for a third time. Mr. Pierre is again asking the full court to take up his case.

Federal law imposes a categorical, lifetime ban on firearm possession for any person who has been convicted of a felony. Since the passage of this law, tens of thousands of such offenses—many of which society would not deem morally wrong—have been added to the books. This proliferation of criminal law has left millions of Americans branded with criminal records. Many of these crimes are neither particularly serious nor indicative of danger with a firearm. Further, the conduct they prohibit—such as lying on an application for food stamps—would not historically have justified perpetually stripping an American of the fundamental right to armed self-defense. Yet, under the Eleventh Circuit precedent Mr. Pierre challenges, two good-hearted Floridians would have been barred from possessing firearms for cutting what appeared to be an abandoned fishing line had they not been pardoned by President Trump.

The Cato Institute has again filed a brief arguing that the categorical disarmament of felons violates the Second Amendment. Congress does not have unfettered power to abridge Second Amendment rights by denying them to felons and then limitlessly redefining what counts as a felony. History—not legislatures—determines the scope of constitutional rights. In assessing whether a particular defendant can be disarmed, courts must compare prior convictions to historical analogs.