In U.S. v. McCane, the Tenth Circuit yesterday addressed a Second Amendment challenge to 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing firearms. Although the Supreme Court in Heller recently held that the Second Amendment provides an individual right to possess a handgun, the Court also explicitly stated in dicta that "nothing in our opinion should be taken to case doubt on longstanding prohibitions on the possession of firearms by felons." On that basis, the majority rejected the defendant's Second Amendment challenge to his 922(g)(1) conviction.
Judge Tymkovich, however, wrote a short but very interesting concurring opinion in which he questioned whether the Heller dictum concerning felon-in-possession laws can be squared with its underlying holding. In particular, he cited several law review articles that have described the historical support for felon-dispossession laws as "surprisingly thin." These articles contend that the weight of historical evidence suggests such laws are creatures of the 20th century -- not, as some have claimed, the 18th century. He also criticized the Heller dictum on the ground that "[t]he Court's summary treatment of felon dispossession . . . forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope."
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