Could Exercising Your Second Amendment Rights Land You In Jail?

The Second Amendment to the United States Constitution guarantees the right of the people to keep and bear arms. And as determined by the Supreme Court of the United States in New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, the right to bear arms necessarily includes the right to carry. But the right to carry is not absolute and knowing when you can and can’t exercise it could be critical to keeping you out of jail.

In the case of United States v. Jackson, a man named Brandon Glen Jackson found himself charged under 18 U.S.C. § 922(n)—a statute which prohibits persons facing criminal indictment from transporting firearms—when he drove across state lines carrying his legally owned handgun for self-defense while subject to a criminal indictment issued by the state of Arizona. And although the mere act of carrying his firearm fell within the ambit of the Second Amendment, Jackson was nevertheless convicted of the offense.

Refusing to accept the results, Jackson appealed his case to the United States Court of Appeals for the Fourth Circuit, challenging his conviction on constitutional grounds. Applying the two-part test created under Bruen, the Fourth Circuit sought to resolve the following analysis: (1) is the conduct in question covered by the plain text of the Second Amendment; and (2) is the challenged restriction consistent with America’s historical traditions?

As to the first part, the court considered whether Jackson was of “the people” as contemplated by the Second Amendment, whether his handgun was an “arm” in the common use of the word, and whether his activities were consistent with “keeping” or “bearing” as determined by the Supreme Court in Bruen. Answering yes to each of these questions, the Fourth Circuit determined that Jackson’s activities were at least preemptively protected under the Second Amendment.

Unfortunately for Jackson, the Fourth Circuit also determined that 18 U.S.C. 922(n) imposed a restriction on his otherwise legal conduct that was consistent with America’s historical traditions, citing to a long history of restricting certain persons from carrying firearms under extenuating circumstances. In particular, the Fourth Circuit found it compelling that American jurisprudence has consistently upheld surety laws imposing restrictions on criminal defendants released on bond and laws restricting dangerous persons, such as felons, from possessing firearms. Because of this, Jackson’s presumptive protections were defeated.