December 04th, 2024

Step One of the Marzzarella Framework

1. Prohibited persons due to mental defectiveness presumptively lack Second Amendment Rights. Heller holds that “longstanding prohibitions on the possession of firearms by mentally defective” are “presumptively lawful.” 554 U.S. at 626 & 627 n.26. Traditionally, the “mentally defective” are people who have been adjudicated by a lawful authority to be unable to manage their affairs or committed to a mental institution by a judge.

“Most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010)

People who have committed or are likely to commit “violent actions” in which violence (actual or attempted) is an core element to formal adjudicate someone on the grounds of dangerousness to others and is also grounds for formal commitment to a hospital. This per Heller undoubtedly qualifies that person as an “unvirtuous citizen” who lacks Second Amendment rights. United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (recognizes the common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens). This category of “unvirtuous citizens” is therefore broader than violent criminals; it covers any person who has committed a violent action, even if it is in the course of an acute mental illness.
Since both Heller, Bruen, and Rahimi allow for historical analogues that are not solely "deadringers", one barrier to overcoming this tradition of barring dangerous individuals is a ‘highly influential’ ‘precursor’ to the Second Amendment, the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents.. That report “asserted that citizens have a personal right to bear arms ‘unless for crimes committed, or real danger of public injury.’” The Gun Control Act and Brady Act both emphasize the importance and risk of mental illness, firearm ownership, and the increased risk of public injury from someone "snapping".

[Citation] Marzzarella’s first step focuses on the probability of violent recidivism and is inconsistent with the true justification for the disarmament of people who commit serious crimes: they are “unvirtuous.” Barton suggests two ways to satisfy this second hurdle of step one: the first is that a challenger may show that he never lost his Second Amendment rights because he was not convicted of a serious crime; the second is that a challenger who once lost his Second Amendment rights by committing a serious crime may regain them if his “crime of conviction is decades-old” and a court finds that he “poses no continuing threat to society.” 633 F.3d at 174.