SMU Law Review
Abstract
This Article considers whether the Constitution permits the permanent disarmament of individuals once deemed dangerous—particularly in cases involving domestic violence. In United States v. Rahimi, the Supreme Court reaffirmed that the Second Amendment protects the right of the people to keep and bear arms, subject only to regulation consistent with historical tradition. That tradition, as examined under New York State Rifle & Pistol Association v. Bruen, does not support lifetime bans absent an ongoing threat.
The Article argues that dangerousness is not immutable. Founding-era laws recognized disarmament as a temporary, conditional measure tied to present conduct, not a permanent judgment based on past behavior. By contrast, modern laws often impose categorical and indefinite prohibitions, untethered from individualized findings or temporal limits. These laws diverge not only from historical practice but from the principle that rights may not be extinguished by legislative fiat.
Drawing on historical sources and empirical data, the Article demonstrates that many individuals convicted of violent offenses—including domestic violence—pose no ongoing danger and remain fully capable of exercising their rights responsibly. To hold otherwise is to depart from the Constitution’s design, which contemplates both accountability and restoration.
At bottom, the question is not whether government may disarm dangerous individuals—it plainly may—but whether it may do so without limit or end. The Second Amendment does not permit such a result, and the constitutional structure does not tolerate it.
Recommended Citation
F. Lee Francis,
The Mutability of Dangerousness: Domestic Violence and Second Amendment Restoration After Rahimi,
78
SMU L. Rev.
319
(2025)
