Heller‘s Collateral Damage: As-Applied Challenges to the Felon-in-Possession Prohibition

By Carly Lagrotteria

A longstanding firearm regulation in the United States prohibits individual convicted of felonies and certain misdemeanors from possessing a firearm. Following the U.S. Supreme Court’s decision in District of Columbia v. Heller, waves of litigation challenged, among other laws, the felon-inpossession prohibition. Due to the lack of clarity in Heller and the Court’s refusal to address it, there is an unsettling circuit split over whether and how an individual can mount an as-applied challenge to the felon-in-possession prohibition.

A decade after Heller, the Third Circuit upheld the first successful asapplied challenge while four circuits have denied the permissibility of these challenges, creating an urgent need for clarification from the Court. Because the Court denied certiorari in the Third Circuit case, the present state of the law is that an individual’s right to restore their Second Amendment rights is determined by where they live. The resulting issue cannot be relegated to the gun control debate and instead represents a constitutional dilemma that demands resolution by the Court. This Note argues that the Court is shirking its duties and should not continue to leave a fundamental right subject to an individual’s residence.