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1468 IOWA LAW REVIEW [Vol. 104:1455
rights-invoking claimants who appear before them, or something about those
claimants’ weapons or other circumstances, that categorically pushes their
claims beyond the Second Amendment’s reach. The Third Circuit concluded
that this is what the Heller majority likely had in mind when offering examples
of “presumptively lawful” gun-control measures, such as laws making it a crime
for convicted felons or persons suffering from mental illness to possess
firearms.
79
The court posited that those individuals simply do not possess the
right that the Second Amendment protects.
In rulings across the country, federal courts are deploying Marzzarella’s
two-step methodology.
80
In many cases, courts have upheld gun restrictions at
the first step. Based upon a combination of historical analysis and an
interpretation of Heller, some circuits have concluded, for example, that the
federal ban on firearm possession by convicted felons is permissible because
—unless they can favorably distinguish their circumstances from the norm
81
—convicted felons are not protected by the Second Amendment.
82
Courts
have reached similar conclusions regarding juveniles,
83
non-citizens who are
in the country unlawfully,
84
individuals who illegally use controlled
79. See id. at 91–92; see also Heller, 554 U.S. at 626–27 n.26 (offering examples of “presumptively
lawful” gun-control measures). For a critical discussion of Heller’s categoricalism, see Joseph Blocher,
Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U.
L. REV. 375, 404–29 (2009).
80. See Binderup v. Attorney General, 836 F.3d 336, 346 (3d Cir. 2016) (“Nearly every court
of appeals has cited Marzzarella favorably. Indeed, it has escaped disparagement by any circuit
court.” (citations omitted)), cert. denied, 137 S. Ct. 2323 (2017).
81. The possibility that one’s status as a convicted felon does not automatically doom one’s
Second Amendment claim flows from Heller’s statement that felon-in-possession laws and the like
are “presumptively lawful.” Heller, 554 U.S. at 627 n.26 (emphasis added). As the Seventh Circuit
has noted, “Heller referred to felon disarmament bans only as ‘presumptively lawful,’ which, by
implication, means that there must exist the possibility that the ban could be unconstitutional in
the face of an as-applied challenge.” United States v. Williams, 616 F.3d 685, 692 (7th Cir.), cert.
denied, 562 U.S. 1092 (2010). Although it is not the most natural reading of the text, perhaps the
Heller Court meant merely to acknowledge that there might be other grounds—having nothing
to do with the Second Amendment—on which a convicted felon might challenge the ban, such
that the Court was not speaking the language of formal presumptions.
82. See, e.g., Binderup, 836 F.3d at 348–53 (upholding 18 U.S.C. § 922(g)(1), at least as
applied to those who have been convicted of “serious” felonies); United States v. Moore, 666 F.3d 313,
316–20 (4th Cir. 2012); United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir.),
cert. denied, 560 U.S. 958 (2010); United States v. Vongxay, 594 F.3d 1111, 1116–18 (9th Cir.),
cert. denied, 562 U.S. 921 (2010). Presented with cases arising under states’ felon-in-possession
laws, some state courts have reached the same conclusion. See, e.g., State v. Craig, 826 N.W.2d 789,
793–98 (Minn. 2013). Some federal courts have relied entirely upon Heller’s dicta, seeing no
need for deeper analysis. See, e.g., United States v. Bogle, 717 F.3d 281, 281–82 (2d Cir. 2013);
United States v. Khami, 362 F. App’x 501, 507–08 (6th Cir.), cert. denied, 560 U.S. 934 (2010);
United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied, 559 U.S. 970 (2010);
United States v. Irish, 285 F. App’x 326, 327 (8th Cir. 2008).
83. See, e.g., United States v. Rene E., 583 F.3d 8, 12–16 (1st Cir. 2009) (upholding
18 U.S.C. § 922(x)(2)(A)), cert. denied, 558 U.S. 1133 (2010).
84. See, e.g., United States v. Carpio-Leon, 701 F.3d 974, 983 (4th Cir. 2012) (upholding
18 U.S.C. § 922(g)(5)), cert. denied, 571 U.S. 831 (2013); United States v. Portillo-Munoz,
643 F.3d 437, 439–42 (5th Cir. 2011) (same), cert. denied, 566 U.S. 963 (2012); cf. United States