Dec 28, 2021
I believed in private property, and wanted to hang out-is that too much to ask?
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I believed in private property, and wanted to hang out-is that too much to ask?
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[T]he constitutionality of Section 922(g) might be bolstered by – and might even require – an additional form of tailoring. A potentially important but moribund provision of federal law, 18 U.S.C. § 925(c), allows those who are prohibiting from possessing firearms to "make application to the Attorney General for relief from the disabilities imposed by Federal laws." The "Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." Section 925(c) also provides for judicial review of a denial of this application.
Taken seriously, this provision could do a great deal to render the various federal firearms provisions consistent with a hypothetical general-law dangerousness principle. Part of the standard for relief is basically a dangerousness principle ("likely to act in a manner dangerous to public safety") and so this might be the appropriate legal channel for anybody who would otherwise have an as-applied constitutional challenge to the federal prohibitions.
However, for over thirty years, Congress has blocked the implementation of Section 925(c). As the Bureau of Alcohol, Tobacco, Firearms, and Explosives reports: "Although federal law provides a means for the relief of firearms disabilities, ATF's annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals." And because ATF cannot review the petitions at all, the Supreme Court has held, judicial review is unavailable too. Implementing a general law approach through a dangerousness principle might force Congress to reconsider this intransigence and restore Section 925 to its original role, or else face the legal consequences.
I don't quite know what the Court means, which is the only reason why I hesitate to say it's indefensible
Well put.