WHY CAN'T MARTHA STEWART HAVE A GUN? Is the public safer now that Martha Stewart is completely and permanently disarmed?

[Martha Stewart Went To Jail For Much Less]

C. KEVIN MARSHALL*
INTRODUCTION
............................................................695
I. FELON DISARMAMENT IN THE UNITED STATES:
NOT SO “LONGSTANDING” OR BROAD................698
II. AMERICAN PRECEDENT—OR NOT—BEFORE
WORLD WAR I
.......................................................707
III. ENGLISH ANTECEDENTS,REAL AND ALLEGED .....713
A. “Forfeiture of All Goods”.............................714
B. Common Law ................................................716
C. Game
Laws.....................................................719
D. “A Subversion of the Civil Government”.....721
E. “Notoriously Disaffected”............................723
IV. APPLICATION: DISARMING SOME FELONS, TO
SOME EXTENT, FOR SOME TIME ............................728
CONCLUSION......................................................
..........735
INTRODUCTION
In 2004, domestic diva Martha Stewart was convicted of ob-
struction of justice, making false statements, and two counts of
conspiracy in connection with dubious stock transactions. Al-
though sentenced to only five months in jail plus a period of
supervised release, she risked a much harsher punishment. Be-
cause she was convicted of a crime punishable by more than a
year in prison, federal law bans her from having any gun.1 Her
ban is for life, unless the Attorney General lifts the
disability—a
                                                                
                                        
* Of Counsel, Jones Day, Washington, D.C.; former Deputy
Assistant Attorney
General, Office of Legal Counsel, U.S. Department of Justice.
This Article repre-
sents the personal views of the Author and does not necessarily
reflect those of
Jones Day.
1. 18 U.S.C. § 922(g) (2006).

696    Harvard Journal of Law & Public Policy [Vol. 32
decision in his discretion and that he effectively cannot make
because Congress regularly bars the Bureau of Alcohol, To-
bacco, Firearms, and Explosives from spending any money to
review petitions to lift firearms disabilities.2
Is the public safer now that Martha Stewart is completely and
permanently disarmed? More to the point, how could such a ban
be constitutional, now that the Supreme Court, in District of Co-
lumbia v. Heller,
3 not only has confirmed that the Second
Amendment secures a personal right to keep and bear arms, but
also has emphasized its historical tie to the right of self-
defense?
The Court, in dicta, told everyone to move along. It as-
serted, without citation, that “prohibitions on the possession
of firearms by felons” were “longstanding” and declared
them “presumptively lawful.”4 The D.C. Circuit decision be-
low, which Heller affirmed, similarly offered that bans on
felons keeping and bearing arms “promote the government’s
interest in public safety consistent with our common law tra-
dition” and “do not impair the core conduct upon which the
right was premised,” primarily self-defense.5 But it cited
only Supreme Court dicta from 1980,6 which Heller subse-
quently disparaged.7 The Fifth Circuit in United States v. Em-
erson,8 the first decision of a circuit court to adopt an indi-
vidual-right interpretation, stated that a ban on possession
by felons “is in no way inconsistent with an individual rights
model,” citing an older Supreme Court dictum stating that
bans on carrying concealed weapons do not violate the Sec-
ond Amendment and a handful of law review articles con-
tending that Founding-era England and America excluded
felons from the right to have arms.9 Emerson’s holding, like
Heller’s, did not involve disarming a felon, although the
court did uphold a related federal disability applied to a
                                                                
                                        
2. 18 U.S.C. § 925(c) (2006).
3. 128 S. Ct. 2783 (2008).
4. Id. at 2816–17 & n.26.
5. Parker v. District of Columbia, 478 F.3d 370, 399–400 (D.C.
Cir. 2007).
6. Id. at 399 (citing Lewis v. United States, 445 U.S. 55, 65
n.8 (1980)).
7. Heller, 128 S. Ct. at 2816 n.25.
8. 270 F.3d 203 (5th Cir. 2001).
9. Id. at 226 n.21.

No. 2] Why Can’t Martha Stewart Have a Gun? 697
man subject to a restraining order that included a finding
that he was a threat to his wife’s physical safety.10
The only problem with these politically understandable yet
poorly briefed and supported assurances in dicta is that, as ex-
plained below in Parts I and II, a lifetime ban on any felon pos-
sessing any firearm is not “longstanding” in America. Nor, as
Part III shows, is it supported by the common law or the Eng-
lish right to have arms at the time of the Founding. Moreover,
it does impair the “core conduct” of self-defense in the home—
at least for a felon who has completed his sentence, or someone
who shares his household. Similarly, the reasoning of recent
state court cases upholding bans on felon possession under
state constitutional arms rights is little better than the
federal
dicta, relying on the same thin claims as Emerson.
11 And earlier
state cases upholding various felon arms disabilities after
World War II tended breezily to invoke the “police power,”12
which begs the question and amounts to the minimal “rational
basis” review that Heller rejected as making a constitutional
arms right superfluous with other protections.13
Whatever the correct constitutional rule, then, the subject cries
out for a serious and fresh look—the first serious look since the
1920s, and arguably the first ever in light of the historical
right.
The need is particularly acute given the cancerous growth since
the 1920s of “regulatory” crimes punishable by more than a year
in prison, as distinct from traditional common-law crimes. The
effect of this growth has been to expand the number and types
of crimes that trigger “felon” disabilities to rope in persons
whose convictions do not establish any threat that they will
physically harm anyone, much less with a gun.14
                                                                
                                        
10. Id. at 261.  
11. For the two fairly serious recent state court efforts, see
Posey v. Common-
wealth, 185 S.W.3d 170 (Ky. 2006), particularly the concurrence,
id. at 181 (Roach,
J., concurring), and State v. Hirsch, 34 P.3d 1209 (Or. Ct. App.
2001), notwithstand-
ing its reliance on the since-discredited scholar Michael
Bellesiles.
12. See Hirsch, 34 P.3d. at 1210 (noting that Oregon has
repented of its “police
power” dependency).  
13. District of Columbia v. Heller, 128 S. Ct. 2783, 2817 n.27
(2008).
14. The Posey dissent compiled a sampling of such felonies in
Kentucky, includ-
ing bigamy, violating campaign-finance restrictions, digging for
artifacts on pub-
lic lands, and falsifying the purchase price in a deed. 185
S.W.3d at 187 & n.5
(Scott, J., concurring in part and dissenting in part)

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felon-gun-possession.pdf