DEREK WADE GINEVAN v. COMMONWEALTH OF VIRGINIA
Record No. 1765-23-4
COURT OF APPEALS OF VIRGINIA
DECEMBER 17, 2024
OPINION BY JUDGE FRANK K. FRIEDMAN
PUBLISHED
Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
William W. Eldridge, IV, Judge
Jason E. Ransom (Ransom/Silvester, PLC, on brief), for appellant.
Anna M. Hughes, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
This appeal considers whether the plain text of the United States Constitution extends the right to possess firearms to those adjudicated to be violent felons—and, if it does, whether the Commonwealth of Virginia has demonstrated that its legislative effort to limit violent felons’ access to such weapons is consistent with this Nation‘s historical tradition of firearm regulation.
Derek Wade Ginevan challenges the constitutionality of
Ginevan‘s prior felony convictions1
In 2012, Ginevan was convicted in the Circuit Court of Frederick County of felony possession with intent to distribute a Schedule I/II controlled substance in violation of
The incident leading to Ginevan‘s arrest in the current case
On January 24, 2023, police officers were dispatched to a possible domestic disturbance in Frederick County, Virginia. When they arrived, officers observed Ginevan and a woman; the woman immediately advised the officers that Ginevan pointed a shotgun at her. Ginevan admitted that there was a gun in his possession but denied pointing it at the woman. Ginevan claimed that he felt threatened by the woman‘s statements and had possession of the firearm for personal safety. Ginevan also admitted that he was a convicted felon, a claim which the officers verified. Ginevan was subsequently arrested and later indicted for possession of a firearm by a felon, in violation of
Ginevan‘s pre-trial motion and the circuit court‘s ruling
Ginevan filed a pre-trial motion to dismiss the indictment, arguing that
After asserting that he should be considered part of “the people” for purposes of the Second Amendment, Ginevan argued that “the Commonwealth must prove that she can strip him of his right to keep and bear arms.” Relying on Bruen, Ginevan maintained that the Commonwealth could not meet that burden because
The Commonwealth responded, arguing that “[t]here is significant historical precedent for prohibiting violent individuals from possessing weapons.” The Commonwealth noted “[a]n examination of English regulations and laws prior to the revolution suggest that disarming violent individuals was even then a long-settled tradition.” As summarized by the Commonwealth, “[t]he historical record makes clear that the nation‘s historical tradition of firearm regulation clearly and strongly embraces prohibiting violent or dangerous individuals from possessing firearms.”
The circuit court heard oral argument on Ginevan‘s motion and denied it. In rejecting Ginevan‘s arguments, the circuit court found “that the plain text of the Second Amendment does not apply to convicted violent felons. Thus, the circuit court determined that Ginevan‘s challenge failed as to the first prong of the Bruen analysis. Even so, the court went on to explain that Ginevan‘s
Following the court‘s ruling, Ginevan entered conditional Alford pleas to the charges of possession of a firearm by a convicted felon and destruction of property. North Carolina v. Alford, 400 U.S. 25 (1970). The circuit court sentenced Ginevan to imprisonment for five years, with two of those years suspended. This appeal followed.
ANALYSIS
I. The Changing Landscape of Second Amendment Analysis
The Second Amendment to the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
A. Bruen Overturns the Means-End Scrutiny Applied by Federal Courts post-Heller
After Heller, federal courts throughout the country implemented a two-step approach to analyzing Second Amendment challenges, ending with the application of what came to be known as “means-end” scrutiny. Bruen, 597 U.S. at 17 (“Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.“); see also United States v. Riley, 635 F. Supp. 3d 411, 420 n.5 (E.D. Va. 2022) (collecting cases). The Supreme Court, in Bruen, 597 U.S. at 17, overturned this approach and determined that while the federal circuit courts’ first step was consistent with Heller, 554 U.S. 570, the second step, applying the means-end scrutiny, was both faulty and inconsistent with Heller‘s jurisprudence.
The Supreme Court clarified the test in Bruen, stating definitively,
[W]e hold that when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation‘s historical tradition may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s “unqualified command.”
597 U.S. at 17 (quoting Konigsberg v. State Bar of Cal., 366 U. S. 36, 50 n.10 (1961)). In Bruen, at step one, the Court essentially asked three questions to resolve whether the plain text of the Second
Under Bruen‘s textual analysis, if “the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Id. at 17. Then, under the second prong of the Bruen analysis, if the government wishes to regulate presumptively protected conduct, it must “demonstrate that the regulation is consistent with this Nation‘s historical tradition of firearm regulation.” Id.
Bruen dealt with a New York statute that required a citizen who wanted to carry a firearm outside his home to obtain a license to “have and carry” the concealed weapon, upon proof that “proper cause exists” for doing so. Id. at 11-12. Proper cause required a demonstration of “special need for self-protection” distinguishable from that of the general community. Id. at 12 (quoting In re Klenosky, 75 App. Div. 2d 793 (N.Y. 1980)). Both petitioners in Bruen had been denied the license. Id. at 15-16. Importantly, in Bruen, there was no dispute that the petitioners were “two ordinary, law-abiding, adult citizens,” and, thus, were among “‘the people’ whom the Second Amendment protects.” Id. at 31-32. Nor was there any dispute that the weapons at issue, handguns, “are weapons ‘in common use’ today for self-defense.” Id. at 32 (quoting Heller, 554 U.S. at 627).3 The Court thus spent the majority of its first-step analysis on the third question, “whether the plain text of the Second Amendment protects [petitioners‘] proposed course of conduct[.]” Id. at 32.
Then having determined that the Second Amendment‘s plain text covered the petitioners’ conduct, the Supreme Court in Bruen moved to the second prong of the analysis and determined that the government failed to meet its burden of proving that state laws which required individuals to show a “special need” for carrying a firearm satisfied the Second Amendment. Id. at 70.
Although Bruen conclusively rejected the means-end balancing test, the opinion never undermined the presumptive lawfulness of firearm restrictions for felons as pronounced in Heller, 554 U.S. at 626. See Rahimi, 144 S. Ct. at 1902 (reiterating that “[O]ur opinion stated that many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.‘” (quoting Heller, 554 U.S. at 626-27 n.26)). In fact, the entire analysis in Bruen centered on the rights of two citizens whom the majority emphasized repeatedly were “law-abiding[.]” Id.
B. The Supreme Court Reaffirms the Bruen Test in Rahimi, Upholding the Constitutionality of Firearm Bans Imposed on Those Posing a Credible Threat and Subject to a Restraining Order
After Bruen, the Supreme Court was faced with a challenge to
Due to this altercation, C.M. sought a restraining order. Id. “On February 5, 2020, a state court in Tarrant County, Texas, issued a restraining order against [Rahimi].” Id. “[T]he order prohibited Rahimi from threatening C.M. or her family for two years” and “suspended Rahimi‘s gun license for two years.” Id. In May 2020, “Rahimi violated the order by approaching C.M.‘s home at night. He also began contacting her through several social media accounts.” Id. In November 2020, “Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon.” Id. “And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings.” Id. The police eventually “obtained a warrant to search Rahimi‘s residence. There they discovered a pistol, a rifle, ammunition—and a copy of the restraining order.” Id. “Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of
Rahimi moved to dismiss the indictment, claiming
When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation‘s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.
Id. at 1896-97. The Court noted that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation‘s regulatory tradition.” Id. at 1898 (citing Bruen, 597 U.S. at 26-31). The Court went on to clarify that “[a]
In Rahimi, the Court stressed that the restraining order at issue contained “a finding that an individual posed a credible threat to the physical safety of an intimate partner” and that the Government offered “ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Id. at 1896, 1898. In its opinion, the Court analogized the restraining order in Rahimi to several other historically similar laws,4 noting that “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.” Id. at 1898. Notably, Rahimi, at the time of his offenses, was not a convicted felon, but nonetheless presented a credible threat of physical harm. Id. at 1895.
Thus, at this juncture, the leading Supreme Court cases dealing with gun restrictions have involved non-felons’ attempts to possess guns. In Heller and Bruen, “law-abiding, responsible citizens” successfully challenged limits on their right to possess and carry a gun. Although Rahimi was not a convicted felon, he posed an inherent danger to the community; accordingly, restrictions on his gun rights were upheld (under the historical prong of the Bruen test). Id. at 1896, 1898.
After the Heller and McDonald framework was laid, Virginia‘s appellate courts followed the common view that some restrictions on gun rights are presumptively reasonable.5 The Supreme Court of Virginia, consistent with Heller, held that the Second Amendment allows the government to prohibit the carrying of firearms in “sensitive places,” including schools and government buildings. DeGiacinto v. Rector & Visitors of George Mason Univ., 281 Va. 127, 134-35 (2011). Specifically, the Court in DeGiacinto considered whether George Mason University could lawfully regulate possession of weapons on its campus. Id. at 130. The Court ultimately found that restrictions on “the carrying of firearms in sensitive places, such as schools and government buildings[,]” are presumptively legal and that George Mason University‘s regulation was “tailored, restricting weapons only in those places where people congregate and are most vulnerable—inside campus buildings and at campus events.” Id. at 136. The Court found the regulation, as applied to a campus visitor, was lawful and did not violate the Second Amendment. Id. at 137. This outcome is clearly consistent with Heller‘s pronouncement that “[n]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . . or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings[.]” DeGiacinto, 281 Va. at 134 (quoting Heller, 554 U.S. at 625-26).6
Relying heavily on Bruen, Ginevan argues on appeal that the circuit court erred in not dismissing the indictment charging him with being a felon in possession of a firearm because his conduct was protected under the Second Amendment.7 As we analyze Ginevan‘s claims, we find that our course is well-charted—even if we are asked to address a question of first impression in Virginia under the post-Bruen-Rahimi framework.
This Court reviews arguments that a defendant‘s constitutional rights have been violated de novo. Walker v. Commonwealth, 302 Va. 304, 314 (2023). Challenging an enactment of the General Assembly is a “daunting task,” as “all actions of the General Assembly are presumed to be constitutional.” Montgomery Cnty. v. Va. Dep‘t of Rail & Pub. Transp., 282 Va. 422, 435 (2011). In fact, “there is no stronger presumption known to the law.” Id. Accordingly, a court may “not invalidate a statute unless that statute clearly violates a provision of the United States or Virginia Constitutions,” and “every reasonable doubt regarding the constitutionality of a legislative enactment must be resolved in favor of its validity.” Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427-28 (2008). It makes sense, then, that “the burden to show the constitutional defect is on the challenger.” Gray v. Commonwealth, 30 Va. App. 725, 732 (1999).8
A. Bruen modifies Prior Second Amendment Jurisprudence
Ginevan argues that ”Bruen conflicts with Heller” and, thus, prior case law relying on Heller is unreliable. The Commonwealth responds that “[n]othing in Bruen purported to overrule or even undermine Heller‘s statement that felon-in-possession laws are presumptively valid.” We agree with Ginevan that Bruen significantly altered the analysis applied under Heller‘s progeny—Bruen reconstructed the test that courts are instructed to use in determining whether a regulation violates the Second Amendment, flatly rejecting the “means-ends” analysis that developed widely after Heller. But we also agree with the Commonwealth that nothing in Bruen explicitly overturned Heller‘s pronouncement that felon-in-possession restrictions are presumptively valid.9
In this case, we must apply the test outlined in Bruen and further clarified in Rahimi. Under this framework, first, we must determine whether the plain text of the Second Amendment covers Ginevan‘s conduct by answering whether Ginevan is part of “the people whom the Second Amendment protects.”10 Bruen, 597 U.S. at 31-32. If we find that Ginevan is covered by the text of the Second Amendment, we must then determine whether the Commonwealth has met its burden in “affirmatively prov[ing] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. Ginevan must prevail on both prongs in order to establish that
B. The First Prong of the Bruen Analysis: Who Falls Within “the people“?
In whole, the Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
1. The Dueling Focus Between “Law-Abiding” Citizens and “Dangerousness” in the Case Law
After Heller confirmed the “right of law-abiding responsible citizens to use arms in defense of hearth and home,” 554 U.S. at 634-39, the term “law-abiding” has spawned much discussion. Is a serial parking scofflaw “law-abiding“? Technically, is a driver with a single speeding violation law-abiding? Are misdemeanors to be forgiven when analyzing a citizen‘s law-abiding nature? Rahimi suggests that the real issue in disarming citizens is “dangerousness“—but Rahimi understandably focused on “dangerousness” as opposed to felon status (as Rahimi was not a felon). 144 S. Ct. at 1901 (“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.“). Moreover, in Rahimi the Supreme Court flatly rejected the “Government‘s contention that Rahimi may be disarmed simply because he is not
Ginevan builds on this emphasis on “dangerousness” vis-à-vis felony status to argue that it is unconstitutional to deny all felons their right to bear arms. After all, there is a significant difference in gradations of “dangerousness” between a felony conviction for involuntary manslaughter by poor driving or a mail fraud conviction, as opposed to felony convictions for aggravated malicious wounding based upon shooting multiple victims. See, e.g., Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (single mail fraud conviction); Range v. AG United States, 69 F.4th 96, 106 (3d Cir. 2023) (felony conviction for making false statement to obtain food stamps). Ginevan reasons that it is wrong to assume that anyone who crosses the boundary into felon status is not a member of “the people” under the text of the Second Amendment.
Here, we run headlong into the tension between Heller‘s assurances that felon-in-possession laws are presumptively legal and the more restrictive prose of Bruen and Rahimi. On the one hand there is Heller‘s promise that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” 554 U.S. at 626-27—language reiterated in both McDonald, 561 U.S. at 786, and Rahimi, 144 S. Ct. at 1902. See also Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring). On the other hand, Bruen admonishes that when “the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” 597 U.S. at 17. Bruen then concludes that the Second Amendment‘s plain text presumptively guarantees law-abiding citizens the right to bear arms in public for self-defense. Id. at 33. Rahimi further instructs that the Second Amendment right may be burdened “once a defendant has been found to pose a credible threat to the physical safety of others.” 144 S. Ct. at 1902. Ginevan attempts to stake out the grey area where felons are not properly considered
Others have crafted similar arguments; and it is not surprising, against this backdrop, to find a budding split in the circuits on the felon-in-possession question among the federal courts of appeals.12 The question of whether non-dangerous felons can be stripped of their gun rights, however, is a debate into which we need not wade because Ginevan is not simply a felon—but has been adjudicated a violent felon by virtue of his previous 2018 conviction for possessing ammunition as a convicted felon in violation of
At bottom, the analysis of whether “the people” covers felons or violent felons depends on perspective; some courts have applied the Heller “law-abiding” citizen language in an attempt to demarcate the category of citizens who possess the right, while others have focused on the Second Amendment‘s permissive language to authorize the right to bear arms, subject to the state‘s ultimate authority to regulate and deny the right.13 The latter camp is gaining momentum.
2. We will Assume, Without Deciding, that Ginevan Falls Within “the people” for Purposes of the First Prong of the Bruen Test
Even if Ginevan is considered part of “the people” for Second Amendment purposes, he still must prevail on the historical analysis to overthrow the statute. Because he cannot prevail on the historical test, the outcome is the same here whether he is—or is not—considered “the people” for Second Amendment purposes so we do not need to definitively resolve that question in this case. For purposes of the textual analysis, we note that many courts, following Bruen‘s expansive language, 597 U.S. at 17, have concluded that felons are embraced within “the people” because the conduct of bearing arms for self-defense is plainly protected by the Second Amendment. See supra, nn. 12 & 13. While we will assume without deciding that Ginevan fits within “the people” for purposes of our analysis,14 we observe that the Second Amendment offers “the people” the right to bear arms for self-protection but not a blank check to do so. As Heller proclaimed: “Like most rights, the right secured by the Second Amendment is not unlimited.” 554 U.S. at 626. The right can be forfeited or held in abeyance for individuals who attain a status that signals a danger of violence or threat to public safety.15 This brings us to the second prong of the Bruen analysis.
Under the second prong of the Bruen test, the burden is on the government to show that the gun prohibition it seeks to impose is consistent with the historical tradition of firearm regulation. 597 U.S. at 17. Here, the Commonwealth argues that “[t]he English tradition of disarming dangerous individuals who pose a threat to public safety dates back centuries.” Indeed, the first known restrictions on firearm possession in England were instituted in 602 A.D. in the Laws of King Aethelbirht, the earliest surviving English legal code—making it illegal to “furnish weapons to another where there is strife.” Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 258 (2020) (quoting Ancient Laws and Institutes of England 3 (Benjamin Thorpe ed., 1840)). Over the next several centuries, dangerous persons were often disarmed according to the law. Dangerous people in those contexts most often meant “those involved in or sympathetic to rebellions and insurrections[.]” Id. Often, the government would prohibit firearm possession from entire regions or even religious sects suspected of disloyalty to the ruling class. Id.16
[I]n 1692, Massachusetts authorized “every justice of the peace” to arrest “all affrayers, rioters, disturbers or breakers of the peace” who, “upon [the] view of such justice,” “ride, or go armed offensively” or cause “fear or affray of their majesties liege people,” and to “seize and take away his armour or weapons, and . . . cause them to be apprized and answered to the king as forfeited.”
United States v. Rowson, 652 F. Supp. 3d 436, 467-68 (S.D.N.Y. 2023) (quoting Acts and Laws Passed by the Great and General Court of Assembly of Their Majesties Province of the Massachusetts-Bay, 2d Sess., 52-53 (1692)). Similarly, “[i]n 1759, New Hampshire enacted a substantially identical statute[.]” Id. (quoting Acts and Laws of His Majesty‘s Province of New-Hampshire in New-England 1-2 (1759)).
Virginia law was no exception to this practice. Virginia permitted constables to confiscate arms “from such who ride, or go, offensively armed, in Terror of the People.” Greenlee, supra, at 262 (quoting George Webb, The Office of Authority of a Justice of Peace 92-93 (1736)). Maryland, Virginia, and Pennsylvania also disarmed Catholics during the 1750‘s because they were viewed as a threat to the government. Id. at 263 (citing Nicholas Johnson, et al., Firearms Law and the Second Amendment: Regulation, Rights and Policy 197 (2d ed. 2017)). And “[i]n 1776, the Continental Congress recommended that the colonies disarm persons ‘who are notoriously disaffected to the cause of America, or who have not associated, and shall refuse to associate, to defend, by arms, these United Colonies.‘” Id. at 264 (quoting 1 Journals of the Continental Congress, 1774-1789, 285 (1906)). Several colonies, including Virginia, followed this
The Commonwealth further demonstrates that following the Founding era, in the 1800‘s, states began enacting more extensive gun control legislation. Laws banned the possession of arms by juveniles, people with mental illnesses, and the homeless. For example, in Connecticut, individuals who were perceived as dangerous were disarmed, id. at 654, based on the advice of the Continental Congress to “secure every person, who, going at large, might in their opinion endanger the safety of the colony or liberties of America,” Folajtar v. AG of the United States, 980 F.3d 897, 914 (3d Cir. 2020) (quoting G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. Rev. 273, 281-82 (1899)). Such laws were routinely upheld by state supreme courts. See, e.g., State v. Shelby, 2 S.W. 468, 469 (Mo. 1886) (upholding a ban on carrying arms while intoxicated as a “reasonable regulation” that prevented “the mischief to be apprehended from an intoxicated person going abroad
In sum, the historical record leading up to, contemporaneous with, and following the adoption of the Second Amendment, and the Fourteenth Amendment, demonstrates that the English and American tradition of those timeframes was to disarm people who were viewed as dangerous to the public or the stability of government.19
Ginevan is quick to point out that there were no outright gun bans based on felony status at the time of the Founding.20 Moreover, he is correct that the federal law prohibiting felons from possessing firearms was not enacted until 1961. An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961). The Firearms Act of 1938, the precursor to the current act, limited disarmament to felons convicted of murder, rape, kidnapping and burglary. Federal Firearms Act, ch. 850, § 1(6), 52 Stat. 1250, 1251 (1938). For that matter, the same is true
A review of English history, the American period prior to the Founding, and our post-civil war era demonstrates persuasively that restrictions on gun possession were broadly permitted against those who were judged to pose a danger to the public. And it is important to note that Bruen does not require a “historical twin” in order to permit governmental restrictions—only a historical analogue. 597 U.S. at 30. The disarming of those who posed a threat of violence to others is the historical analogue here.21 See Jackson, 110 F.4th at 1126 (finding that laws disarming the dangerous around the time of the Founding provided a sufficient historical analogue to support the constitutionality of
Applying that analysis here, we affirm the lower court‘s finding that
Ginevan attempts to argue that his 2018 conviction for possessing ammunition should not be considered a violent felony; but the legislature has spoken definitively on this issue in
CONCLUSION
Having applied the Bruen test to
Affirmed.
FRANK K. FRIEDMAN
JUDGE
Notes
A. It shall be unlawful for (i) any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm or ammunition for a firearm, any stun weapon as defined by
§ 18.2-308.1 , or any explosive material, or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of§ 18.2-308 . However, such person may possess in his residence or the curtilage thereof a stun weapon as defined by§ 18.2-308.1 . Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in§ 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.
It merits mention that the Constitution of Virginia also protects the right to bear arms. It states:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military
should be under strict subordination to, and governed by, the civil power.
United States v. Rahimi, Brief for Amici Curiae Professors of History and Law in Support of Petitioner 2 (2023).There is a longstanding American tradition of regulating firearms possession by people who are perceived to be dangerous or otherwise threaten to disrupt the public peace. The tradition of curtailing the right to keep and bear arms of those perceived as threats to public safety and peace dates back to the common law, and continued through the colonial and Founding Eras. In some cases, dangerousness was evidenced by acts of violence, such as those who participated in Shays’ Rebellion. But actual violence was not a prerequisite to disarmament; the perceived potential for violence to others or disruption to the social order was enough.