For the second time in as many weeks, the op-ed pages of the Washington Post includes a pro-Second Amendment column... or at least one that's not explicity hostile to the right to keep and bear arms, which has been the standard practice for the paper going back decades. 

Last week the WaPo editors urged the Supreme Court to dismiss Mexico's lawsuit against U.S. gun makers, which marked the first time the paper had run a remotely pro-gun column since owner Jeff Bezos announced the paper's editorial page would be championing "personal liberties" and the free markets. Today the paper followed up that editorial with a column by law professors Ian Ayres and Fredrick E. Vars that argues in favor of funding the federal pathway to restoring the Second Amendment rights of prohibited persons, using the recent kerfluffle over Mel Gibson's gun rights that we covered on Tuesday.

In their column, Ayres and Vars argue that while the "indiscriminate restoration of gun rights of domestic violence abusers would almost certainly have tragic consequences", reviving the pathway to restoring his (and others) right to keep and bear arms would "not only would better tailor our efforts to reduce gun violence but also would help insulate gun regulation from constitutional attack."

In 1965, Congress amended the Federal Firearms Act to include a provision that has been codified as Section 18 U.S.C. § 925. This provision allows anyone whose gun rights have been restricted by federal law to petition the Justice Department for the restoration of those rights. The attorney general is instructed to grant any petition if the applicant is not “likely to act in a manner dangerous to public safety.” And § 925(c) also gives applicants the right to appeal a denial by the Justice Department in federal court.

A right to petition responds powerfully to both of the Supreme Court’s concerns. The petition process transforms what is now a permanent possession ban into a mere presumption of dangerousness that can be rebutted. No loss of gun rights would necessarily be permanent, and anyone subject to a prohibition would be able to demand an individualized determination of dangerousness.

The petition process proved a vibrant pathway for relief. Within a few years of its passage, thousands of individuals began filing Section 925 petitions — with about one-third of applicants being granted relief. By the early 1990s, the Bureau of Alcohol, Tobacco, Firearms and Explosives had deployed more than 40 full-time employees to review 925(c) applications. 

Yet today, this provision is little known because Congress stripped the Justice Department’s funding to evaluate 925(c) petitions. In 1991, the Violence Policy Center published a report criticizing the program with vivid examples of violent felons who had been granted relief and subsequently reoffended. Two years later, Congress zero-funded the program, effectively prohibiting the Justice Department from granting petition relief. And the petition program has remained unfunded to this day.

The Supreme Court has at least hinted that blanket prohibitions on the right to keep and bear arms for all those convicted of felonies or domestic violence misdemeanors and those adjudicated as mentally defective could run afoul of the Second Amendment's protections, and lower courts like the Third Circuit have explicitly reached that conclusion, declaring that at least in some circumstances the prohibited persons statute is unconstitutional. If Congress were to re-fund Section 18 U.S.C. § 925, the courts wouldn't have to adjudicate every prohibited person case because there would be another pathway for individuals to have their rights restored; one that, as the professors point out, would encompass an individual finding of dangerousness. 

That would be a dramatic improvement over the status quo, and something that ostensibly could draw the support of both Republicans and Democrats. The gun control lobby would be livid at any Democrat on Capitol Hill who would vote in favor of restoring funding to evaluate and approve 925(c) applications, of course, but allowing for the full restoration of rights is in line with the ideals and principles of criminal justice reform as well as the protections afforded by the Second Amendment. 

I have to say that I'm liking this newfound respect for the right to keep and bear arms in the WaPo editorial pages. I'm still curious to see where the editors will come down on things like semi-auto bans, gun controls for adults under the age 21, and rescinding the Biden-era ATF rules targeting gun owners and the firearms industry, but it's great to see voices that at least acknowledge the right to keep and bear arms is real and should be respected are now welcome to share their views in the op-ed section.