Dallas, TexasToday No party ★ No masters ★ No sacred cows
Second Amendment autopsy № A2

Can You Regulate a Right and Still Call It One?

The federal government sorts Americans into a lifetime punishment category with a checkbox. No hearing. No proof you're dangerous. No way out. The courts are starting to call it what it is. Read this and try to stay calm.

By Jacob · Editor · October 10, 2026 · 10 min read

What happened

The federal ban on felons possessing firearms — 18 U.S.C. § 922(g)(1) — is being torn apart in the federal courts, and the political class is hoping you don't notice.

The record: the Third Circuit, sitting en banc, twice held the ban unconstitutional as applied to Bryan Range — a Pennsylvania man whose "felony" was a decades-old false statement on a food-stamp application. Nonviolent. Sentence completed decades ago. Dangerous to no one. The court's answer: the government can't disarm him just because the label fits. The Department of Justice declined to ask the Supreme Court to intervene.

The Sixth Circuit (Williams, 2024) now permits as-applied challenges that separate the dangerous from the non-dangerous. The Eighth Circuit (Jackson II) refuses — felon means disarmed, no questions, no hearing, no exceptions. A live circuit split, which is how the Supreme Court gets forced to act. The DOJ's refusal to appeal Range reads as a deliberate decision to let the split ripen rather than risk a broad ruling against the ban.

Understand the machine: § 922(g)(1) bans gun possession for anyone convicted of a crime punishable by more than a year. Every felony. Violent or not. Last month or forty years ago. One checkbox, lifetime punishment, zero inquiry into whether the human being behind the label is dangerous. This is punishment by category — the laziest form of governance ever devised, because it lets the state punish without ever looking you in the eye.

What each side claims

The gun-rights side (steelman): "Shall not be infringed" is plain text, and the founders meant it as a tyranny check — Madison's Federalist 46 ran the numbers in public: a federal standing army of 25,000–30,000 against half a million armed citizens in state militias. A right conditioned on government permission is a privilege with patriotic branding. And categorical bans are double punishment: serve your time, then serve a lifetime disarmament sentence with no judge, no hearing, no end date.

The regulation side (steelman): Public safety is real, and the ban is a workable proxy for dangerousness. Heller — the most pro-gun ruling in history — said the right is "not unlimited." Individualized hearings for millions of felons would be an administrative impossibility; categories are how systems at scale function. The adjacent bans — fugitives, people under indictment — exist because someone facing charges has every incentive to flee or intimidate witnesses.

Both steelmen are honest. Now watch what the evidence does to the comfortable parts of each.

What the evidence says

No right was ever absolute — the founders themselves prove it. Seven years after the Bill of Rights was ratified, the founding generation passed the Sedition Act of 1798, making it a federal crime to publish criticism of the government. Read that again: the men who wrote the First Amendment criminalized speech against themselves within a decade. The First Amendment now carries a full catalog of exceptions — obscenity, defamation, true threats, incitement, time-place-manner restrictions. Heller said the Second Amendment "is not unlimited" and excluded "dangerous and unusual" weapons, with Scalia writing that M-16s can be banned. Anyone selling "no regulations, ever" is selling a history that never happened.

The ban doesn't target violent offenders. It targets a label. § 922(g)(1) covers every felony punishable by over a year — food-stamp fraud counts the same as armed robbery. The "violent felonies only" version is a widespread misunderstanding, and it's convenient for everyone: supporters get to imagine they're disarming predators while the law quietly sweeps up the nonviolent too. Precision matters, because the machine runs on your inattention.

The word "arms" is undefined in the Constitution — and that's the whole game. The document has no definitions section. "Arms" means whatever case law says it means: the 1791 dictionary sense, Heller's "in common use," Caetano's "bearable arms, even those not in existence at the founding." An undefined word is a battlefield, and the prize is the right itself. Whoever controls the definition — "common use" versus "dangerous and unusual" — controls the Second Amendment without ever amending the Constitution. The fight left Congress long ago. It lives in courtrooms now, which is why the circuit split above matters more than any bill.

Rights collide, so absolutism is a fantasy. The Fifth and Fourteenth Amendments protect "life" — no person shall "be deprived of life, liberty, or property, without due process of law." Murder statutes restrict what you can do with your arms, and nobody serious calls them unconstitutional. The Second Amendment never included the right to kill the innocent. The line exists. The only honest question is where it sits — and who gets to move it without asking you.

The "just don't kill anyone" standard ignores most gun deaths. In 2024, 62% of U.S. gun deaths were suicides — 27,593 people — and 35% were homicides, per CDC data. A philosophy of "no restrictions, punish the killing after" has nothing to say about the majority of gun deaths, and the evidence on means restriction during impulsive windows is among the strongest in public health. The absolutist framework doesn't just fail the test. It refuses to take it.

The courts are shifting the burden back where it belongs. Range II and Williams don't abolish the ban — they demand the government justify disarming this person instead of pointing at the category. That is the live frontier of American gun law, and it's moving in one direction.

Follow the incentives

Prosecutors are the ban's biggest beneficiaries. "Felon in possession" is prosecutorial gold: prior conviction plus gun equals guilty, heavy sentences, no dangerousness to prove. It's plea-bargaining leverage manufactured by statute. Every categorical ban is power a prosecutor never has to justify to a jury.

Politicians buy the credit and skip the work. A lifetime categorical ban costs nothing to write. Individualized dangerousness hearings — judges, standards of proof, review schedules, administration for millions of cases — cost real money and real effort. So Congress wrote the checkbox and called it public safety. Republicans fundraise off "they're coming for your guns." Democrats fundraise off "we're doing something." The machine grinds on under whoever holds office, because neither side profits from fixing it.

The test-owners own the right. Bruen's test — text, history, tradition, no balancing — is currently stricter than the tests guarding most other rights. Both tribes love strict tests for rights they cherish and mushy balancing for rights they don't. Watch the migration: the test forged for the Second Amendment today gets borrowed for the First tomorrow. That's how regulating one right reaches the others — not by dramatic repeal, but by a borrowed test, quietly applied, while everyone was watching the wrong fight.

Categorical disarmament is pre-built tyranny infrastructure. Say it plainly: a government going bad doesn't need door-to-door confiscation. It needs only to widen the categories — declare dissidents felons, and the ban disarms them legally, automatically, with no individual finding, no hearing, no appeal that matters. The power to define disarmed classes without proving any individual dangerous is the first tool every modern authoritarian reached for. The categories came before the confiscations, every single time.

Private compliance enforces what the law doesn't even require. Federal firearms licensees face ruinous penalties for violations, so corporate policy routinely exceeds the statute — screening out people the law would permit, on database flags alone, with no dangerousness finding. The state never has to punish you directly when private-sector risk aversion does it for free. Regulation by liability atmosphere. It appears in no statute, answers to no voter, and cannot be appealed.

Jabs where earned

To the "shall not be infringed" absolutists: your position on private nuclear weapons, please. The absolutism works as a rally slogan. It dies as a governing position — watch it sprout exceptions the moment it's asked to govern anything. Then explain your support for murder laws: restrictions on what arms may do, which you cheered. A slogan is not a philosophy.

To the regulation absolutists: if every regulation is permissible, the Bill of Rights is a permission slip and "rights" is a marketing term. And spare us the selectivity — the same voices who cheered Bruen's strict test against gun laws would howl if text-history-and-tradition were turned on speech or reproductive rights. Strict scrutiny for my rights, balancing tests for yours. The incentive structure is team sports wearing legal citations.

To Congress: a categorical lifetime ban is what you write when you refuse to do the work. Individualized adjudication is expensive, slow, and hard — so you wrote a checkbox, punished people by label, and called it safety. The courts are now doing your job for you, one as-applied challenge at a time. You're welcome.

The fair counterweight, because fury without honesty is just noise: categories exist because individualized justice at scale is genuinely difficult, and some lines — people under active supervision, people under restraining orders for violence (Rahimi was not close on the facts) — track dangerousness well enough that hearings-first could cost lives in the gap. "Prove dangerousness individually" is the right standard. Building the machine that does it is the work nobody in power has bothered to do.

Verdict: "Can we realistically have rights if regulations exist?" Wrong question. Rights were never unregulated — not even at the founding, not even by the founders. The question that matters: who bears the burden of proof? A right survives regulation only when the state must justify every restriction, against every person, every time. A categorical lifetime ban inverts it: disarmed until proven harmless, forever, in a forum that doesn't exist. No hearing. No standard. No end date. The government grades its own homework, and the grade is always guilty. That should enrage you. The machine punishes by label so it never has to look anyone in the eye. Individual judgment is work. The system chose the checkbox instead, and nonviolent, non-dangerous Americans carry a lifetime punishment that no judge ever individually ordered. Whether that earns the word "tyranny" is yours to decide — we show the mechanism, you render the verdict. The courts are starting to demand the government show its work. Range. Williams. The direction is set: dangerousness proven, not assumed — the burden on the state, where the Bill of Rights always said it belongs. The only question left is how long the checkbox survives. And how loud we get while we wait. ---

Sources

Every factual claim in this autopsy traces to one of these. Don't take our word for any of it — that's the entire point of this site.

The analysis and the incentives-mapping are ours. The facts are theirs. If you spot an error, corrections go on the front page.

Filed from Dallas, TX. No party, no masters, no sacred cows. Spot an error? Corrections go on the front page.

← Back to the board

DDRADIO
Loading…