The Law That Disarmed Trump Is Unfair, Illogical, and Constitutionally Dubious
President-elect Donald Trump’s sentence of “unconditional release” for violating a New York law that prohibits falsification of business records entails neither jail nor probation. But unless Trump successfully challenges his 34 felony convictions on appeal, he will suffer a lifelong penalty that should trouble civil libertarians across the political spectrum.
Because Trump’s convictions involved crimes that were notionally punishable by more than a year of incarceration, they made him subject to a federal law that bars him from possessing firearms. That law is unfair, illogical, and constitutionally dubious because it deprives Americans of their Second Amendment rights even when they have no history of violence.
Manhattan District Attorney Alvin Bragg’s case against Trump was based on a vague, convoluted, and highly questionable legal theory aimed at punishing conduct that was not inherently criminal: trying to conceal his 2016 nondisclosure agreement with porn star Stormy Daniels. But even if you think the prosecution was justified, the allegations underlying it provide no reason to believe Trump is prone to gun violence.
The same could be said of many other state and federal crimes that nevertheless trigger the loss of the constitutional right to armed self-defense, such as mail fraud, securities fraud, theft of fishing gear, driving under the influence, perjury, embezzlement, obstruction of justice, nonviolent drug offenses, and gun possession by cannabis consumers. As UCLA law professor Adam Winkler observes, this category of “prohibited persons” is “wildly overinclusive,” encompassing a long list of crimes that are “not violent in the least.”
People who fall into that category face up to 15 years in prison if they dare to exercise their Second Amendment rights. They also can face additional charges that raise the combined maximum penalties to nearly half a century.
The law that forced Trump to give up his guns is of relatively recent vintage. Congress approved it in 1961 as an amendment to the Federal Firearms Act of 1938, which included a ban on gun possession that originally applied only to people convicted of violent crimes such as murder, manslaughter, rape, kidnapping, and robbery.
That expansion looks newly vulnerable in light of th
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