Judges and Professors, Working to Disarm the "Unvirtuous"

Federal law prohibits all felons from possessing firearms. So the Third Circuit recently held in Folajtar v. Attorney General, no. 19-1687 (3d Cir. Nov. 24, 2020). 

But, you ask, isn't this a Second Amendment problem? The Supreme Court has held, after all, that the right to bear arms is an individual right, guaranteed by the Constitution. 

No, the Third Circuit majority answers, it is not a Second Amendment problem. Read the question again closely. The law, 18 U.S.C. 922(g)(1), only applies to felons. Felons are dangerous. We don't let dangerous people have guns. Not at the time the Second Amendment was ratified. And not now.

But wait, you say. "Felon" has a broad definition. Especially in our hyper-legalized modern system. What was the felony at issue in Folajtar. 

Um, answers the Third Circuit, well, it was "a materially false statement on her tax returns." But I assure you, that does not make her any less dangerous. You see, making false statements on tax returns is a felony, and people who commit felonies, even nonviolent felonies, are more likely to be dangerous than people who don't commit any felonies. 

Oookay. Is that all? you ask. 

No! There's more! says the Third Circuit. There are also a lot of professors who say that our Constitution was made for a "virtuous citizenry." John Adams said that, you know. And clearly, people who commit felonies are not virtuous.

Well, you would like to know, who were the types of unvirtuous people who were deprived of their right to bear arms at the founding? 

Oh, lots of people, says the Third Circuit, now leaning on the Seventh Circuit. Intoxicated people, mentally ill people, tramps, lunatics, addicts, things like that. 

But someone can go to jail for what Martha Stewart did and be nothing like mentally ill or an alcoholic, you point out. So how does any of this make them dangerous? 

We didn't say it made them dangerous, exactly, strains the Third Circuit. We said it makes them unvirtuous. 

And unvirtue is probative on Second Amendment rights because, why again?

We already told you. A bunch of professors say so. 

(The dissent is having none of this. Drawing from a then-Judge Amy Coney Barrett, reasons the probative question is danger, not virtue.) 

The problem with modern lawyers citing 18th and 19th century precedent is modern lawyers lack the training or interest in understanding the natural law reasoning of founding-era lawyers. Founding era lawyers would understand the term felony, and the natural right of self-defense, based on their origins and roles in the natural law. 

For a modern lawyer, however, trained only in positive law, a "felony" is simply a binary status spit out by a computer terminal -- it is merely the answer to the question whether the applicant has paid his renewal fees with the DMV (Department of Moral Virtue), and is a member in good standing.

Positivist professors and lawyers, by smuggling natural law concepts into their positivist program, and emptying these concepts of their ancient meaning and redefining them. That includes the concept of virtue itself. These practitioners would deprive us of any limiting principle that would keep their feeble justification of "unvirtue" from abridging our right to self-defense, and all our other rights.