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January 13, 2008

Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?

300pxenglish_flintlock_blunderbuss Here, in full, is the text of the Second Amendment: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."  The meaning and application of this provision comes before the Supreme Court this year in the Heller case, and I think the case may result in a number of surprising outcomes.  One such outcome that surprises me comes from the US government's brief filed late last week.

As detailed in this SCOTUSblog post, through the filing of this amicus brief, the "Bush Administration urged the Supreme Court Friday night to rule that the Second Amendment protects an individual right to have a gun for private use."  Though this amicus brief is full of interesting points, I was taken aback by this assertion: "the Second Amendment, properly construed, ... does not provide any protections to certain individuals, such as convicted felons, who have never been understood to be within the Amendment’s coverage."  In other words, it seems that the US government is arguing that "the people" referenced in the Second Amendment's text does not include any of the millions of Americans with a felony conviction. 

Notably, the Bill of Rights uses the phrase "the people" in four other Amendments (the First, Fourth, Ninth and Tenth). I have never before heard a claim that all convicted felons are categorically denied the individual rights protected by all these Amendments.  The Fourth Amendment, notably, speaks of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."  The Supreme Court has never suggested that individuals, once convicted of a felony, thereafter cannot assert Fourth Amendment rights.  (The Supreme Court has held that searches of prisoners and paroles can be reasonable even without any individualized suspicion;  but such rulings are a far cry from suggesting that all convicted felons are no longer among "the people" who have rights under the Fourth Amendment.)

I find notable and telling the US government's need to take such a blunderbuss approach (pun intended) when seeking to limit the reach of Second Amendment rights.  The government's brief confirms my instinct that, if an individual-right genie emerges from Heller, it may prove quite hard to get Second Amendment rights back into the regulatory bottle.

January 13, 2008 at 08:55 PM | Permalink

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Doug, thanks to your post several weeks ago about North Carolinian Gary Holt, I am representing Mr. Holt in his quest to regain his ability to hunt, following his conviction twenty years ago for possession of marijuana. I'll let you know if we are successful. Bruce

Posted by: bruce cunningham | Jan 13, 2008 10:32:59 PM

Doug, I represent two people who are very interested in Heller. Mr. Holt and another person who is charged with Possession of Firearm by Felon for having his grandfather's shotguns in a guncase in his bedroom, following a drug conviction in 1989.

What about a claim under the Ninth Amendment, which does apply to the States, that Mr. Holt has an unenumerated right secured by the Ninth Amend to hunt and the other man has a right to possess a shotgun to protect his home? Last week I had a conversation about guns with a person who said that had it not been for his shooting squirrels and rabbits as a boy his mother would not have had any food to put on the table. As I recall, didn't the Magna Carta include a right to fish? What about an unalienable right, secured by the "catch-all" amendment, to put food on the table?

As far as the other case, my recollection from a college philosophy class is that the right to self defense is the only absolute right. No one has to voluntarily die. So, a Ninth Amendment right to possess a long gun solely within the confines of his home and solely for the purpose of protection?

I don't see these possible arguments being too big a stretch. Isn't this what the Ninth amendment was all about- the founders acknowledged that they couldn't name all the rights so they specifically included the amendment to say just because it wasn't named doesn't mean that "the people" didn't have it. After all, as Scalia said in Blakely, we are a country of reserved power to the people and I think the people didn't intend to convey to the government control over their right to put food on the table and protect themselves. I would contend that the government can regulate those two actions but not impose a blanket prohibition.

bruce cunningham

Posted by: bruce cunningham | Jan 13, 2008 11:01:29 PM

When I read that passage in the SG's brief, it startled me, too. However, I took it to be a contention not that convicted felons are excluded from being counted among "the people," as used in the Constitution, but that convicted felons were not among those considered part of the militia (which basically consisted of all free males, or something like that). Would that be a historically valid contention?

Posted by: Peter G | Jan 13, 2008 11:36:37 PM

Whatever history shows about convicted felons in the militia, Peter, it cannot be the case that the historical understanding of who could serve in the militia at the Founding still could/would/should limit who gets Second Amendment rights. Whether convicted felons were allowed in the militia, I assume women, people over a certain age and blacks were not considered militia-eligible at the Founding. I am sure the SG won't argue that these historical militia exclusions now help define the modern scope of Second Amendment rights.

Posted by: Doug B. | Jan 14, 2008 6:49:45 AM

I guess the Bush admin. has never heard of 18 U.S.C. 921 (a) (20) which congress passed to allow certain felons to own guns. It defines what a felony conviction is for the purpose of 922 (g)(1). A Supreme Court decision will not void the federal statute. Certain felons will still be able to buy guns and rightfully so under the law. Especially in states like Louisiana that restore firearm rights to felons after 10 ten years and in some non-enumerated crimes, emediatley upon completing their sentence. Louisiana also has the first offender pardon and the Louisiana constitution which restores full rights of citizenship upon completing a sentence. The 5th circuit court of appeals held that this restoration satisfies 921 (a) (20) in United States V. Dupaquier.

Posted by: Paul | Jan 14, 2008 9:57:51 AM

Paul, do you know of any studies in Louisiana on those felons using guns to commit crimes after their rights are restored? My guess is that kind of recidivism wouldn't be any higher than it would be in states that do not restore gun rights, and the recidivism rate might even be lower (due to a fuller reintegration), but that is just a hunch.

Posted by: George | Jan 14, 2008 10:54:32 AM

1. Doug, if you could elaborate your last sentence--about the regulatory bottle. The DC law said that a person cannot even have a gun in his/her own home.

2. The comment Doug, about women, Blacks, over a certain age persons, not being admitted into the militia at the time of the founding. Hmmm. I believe that all three fought in the Revolutionary War. The Founding as we know it is the time of the Founding document. The Constitution which came well after the shots heard round the world in 1776.

3. 14th Amendment Rights. Scholars help us out on this one here. Within the text of the Freedman's statutes following the 13th and 14th and 15th Amendments after the (un)civil war, was there not statutory provision for right to bear arms granted to freedmen, and was this not specified as part of the right and duty of Congress to pass laws to enforce both the 13th, 14th and 15th Amendments (each amendment having a specific provision at the end)? I ran across a book on this subject at the 8th Circuit Court of Appeals Library in St. Louis, but alas that library is 1060 miles to the west of where I live.

4. Ninth Amendment. Mr. Cunningham's comment on the Ninth Amendment seems spot on. A lot of pro lifers (and jerks like Fred Thompson when he is playing D.A. on his cop show) like to ridicule the "penumbras" and so forth. But the "unenumerated rights" need to have their day. The right "to be let alone" in the woods with one's squirrel gun seems what the Founders would have contemplated in 1789. I know that the English redcoat would have preferred that the women, the blacks, the old and the lame be excluded from the American militia, but our needs were compelling. Many of us believe that the first Ten Amendments need to be read together. Those who believe that only "enummerated rights" find protection and enforcement by the courts must then accept that the Founders did not enumerate exceptions to what "people" meant in the Second Amdt. Is there a Ninth Amendment blog out there?

5. My gun instinct says that the Supreme Court took this case up because there is a majority that will strke down the DC law and give some degree of vitality to the Second Amendment.

6. My gun instinct says that if I was in the woods and had a choice of sharing some hunting terrain with Scooter Libby or Dick Cheney (and had my back to both of them) that I would choose the felon as the safer option.

Thank you for bringing this case to the Blog.

Posted by: M.P. Bastian | Jan 14, 2008 11:04:11 AM

Paul, do you know of any studies in Louisiana on those felons using guns to commit crimes after their rights are restored? My guess is that kind of recidivism wouldn't be any higher than it would be in states that do not restore gun rights, and the recidivism rate might even be lower (due to a fuller reintegration), but that is just a hunch.

I don't know of any studies done or if they even keep statistics on this but I see like this: Ten years is a long time to go with out commiting other crimes which of course would interupt the statute of limitation and the overwhelming majority of felons who offend will keep on offending. So there aren't too many felons who actually go long enough for the ten year cleansing period to restore their firearm rights. As for nonenumerated offenses, there are very few that are not outlined in RS 14:95.1 so I don't think that recidivism of felons with restored gun rights is too much of a problem. Of course Gary Dupaquier did make the 10 years but he did reoffend and was ultimate charged with drug crimes and a 922 (g) (1) charge which the 5th circuit reversed.

Posted by: Paul | Jan 14, 2008 11:13:19 AM

M.P.Bastian,

I'll share my favorite story about the Ninth Amendment and the distinction between the Magna Carta and the Bill of Rights.

I was giving the Constitution Day address to the local chapter of the Daughters of the American Revolution and I was trying to make the point that the Magna Carta contains rights given to the lords by the king but in America all rights are reserved to the people except those given by the people to the government. I asked the question of why the Framers might have been reluctant to write down a list of rights, heading toward the notion that some folks were concerned the list would become exclusive.

A nice lady in the back raised her hand and said, "Since all the Framers were men, they were probably afraid that if they made a list of the rights, they would lose the list!"

In my opinion, the Ninth Amendment is the most important of all because more than any other it describes the balance of power between the people and the government.

bruce cunningham

Posted by: bruce cunningham | Jan 14, 2008 2:36:35 PM

Maybe, just maybe, the Bush Admin's point(s) in putting the qualification about felons into its brief was not, as many may suspect, to preserve the existing gun control statutes (prohibiting felons in possession and such) against constitutional attack, but rather to have the Supreme Court, by a constitutional decision (one not really impugnable by statute) circumscribe the constitutional definition of "The People" to "The people not already convicted of a felony" from "everyone". Redefining "The People" thusly would make all those nice cases about felons' rights to 4th Amendment protection and such kinda moot, no?

And, before everyone jumps on the bandwagon of beating up on my analysis, don't forget that, for example, Brady is well-settled law, and in destroying the CIA interrogation/torture tapes and covering it up from the District Courts trying terrorism suspects (who may have been entitled to at least have the tapes at least reviewed by the District Court to see whether those tapes contained Brady material), the Administration merely brushed aside the fundamental Fifth and Sixth Amendment rights protected by Brady.

Posted by: scribe | Jan 14, 2008 5:29:46 PM

After the story ran several weeks ago about me trying to obtain a pardon from Governor Easley in North Carolina I received a phone call telling me that I could own a firearm. The man went on to explain to me that it would be perfectly legal if i had a firearm that was manufactured before January 1,1899. He then explained it was legal because the firearm would be considered an antique. If this is indeed true this law seems really weird. Why would the law say a felon cannot own this firearm but he/she can own this firearm.

Posted by: Gary Holt | Jan 14, 2008 6:01:53 PM

After the story ran several weeks ago about me trying to obtain a pardon from Governor Easley in North Carolina I received a phone call telling me that I could own a firearm. The man went on to explain to me that it would be perfectly legal if i had a firearm that was manufactured before January 1,1899. He then explained it was legal because the firearm would be considered an antique. If this is indeed true this law seems really weird. Why would the law say a felon cannot own this firearm but he/she can own this firearm.

Careful here! It's my understanding that those guns and modern replicas can't be firearms that use cartrige type ammo no matter how old. You should read the federal statutes which I believe is refering to black powder muzzle loading firearms. Also this is a federal statutory provision so if you are prohibited by your state you still could be prohibited by the state from possessing even these type of firearms. Best consult a lawyer.

Posted by: Paul | Jan 14, 2008 7:13:06 PM

Mr. Holt, there's more to it than just predating the 20th Century.

This is the statute (which only provides an exception from certain provisions of the federal Firearms Act.
http://www.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00005845----000-.html

See the surrounding provisions for the significance of the "antique" exception.

And this is a recent case in which a man was prosecuted for having a 19th-Century shotgun and won a partial reversal from the Third Circuit on appeal.
http://www.ca3.uscourts.gov/opinarch/054088p.pdf

I'm just some random guy on the internet, though, so talk to your lawyer before you make any real decisions about whether to go out and buy a gun.

Posted by: | Jan 14, 2008 11:32:50 PM

Thanks Paul for the information. I do not plan on obtaining any firearm until the law clearly states that I may have one. I sure as heck do not want to go to jail for felon possessing a firearm.

Posted by: Gary Holt | Jan 15, 2008 7:38:47 AM

I'm have no legal experience, and I could easily be wrong, but when I read about this it seemed to me that the Bush Administration can't be serious.

Whoever wrote the brief probably did not even understand that they were, in effect advocating an entirely new interpretation of the constitution; they were merely showing their ignorance.

It seems like they merely assumed that felons are not covered by constitutional protections, and that this is already accepted law. After all, Congress may make laws abridging the freedom of speech, religion and assembly for members of the military. If the first amendment doesn't apply to the military, it might seem reasonable to some ideologically limited minds for felons to lose their second amendment rights.

Posted by: Peter Pitchford | Jan 16, 2008 11:31:12 PM

i was woundering since i have a felony conviction for aggrivated flight from an officer if i can still own a gun

Posted by: jeff denby | Jan 28, 2008 12:50:57 PM

I have had no desire to ever own a handgun, or any firearm for that matter. But just knowing that NC is so tough on felons (I am a felon too!)what type of message does that send the person who makes a mistake? Once you screw up in NC you have screwed up for life.

Did you know it is a felony to steal a chicken? Or any livestock for that matter.

There was a bill in NC legislature in 2007 that was introduced (and killed by the AOC) that would have allowed expungement of felonies of non violent crimes if the offender was clean for at least 10 years, and no other priors. SB1081 NC

It passed the NC Senate, but got pigeon holed in the House Finance Committee by some AOC administrator that did not want his folks to 'get extra work'. The proposed bill would have cost the applicant $300.00 and actually brought revenue into NC.

Once a felon, always a felon in NC.

Posted by: Scoobydo | Mar 17, 2008 1:35:26 PM

i am an avid target shooter who had his right to possess/buy/firearms for the past 17 years because of felony convictions of ccw, trafficing in drugs and a plea bargained deal to domestic violence to have 3 other felonine dropped. i have not been in trouble since i was released from prison and have acquired 2 college degrees, an associate in paralegal studies and a bachelor degree in criminal justice. how can i get my right restored as i would like to, not only get back to target shooting but to protect my home and loved ones from someone trying to enter my home. thank you

Posted by: charles jetter | Apr 28, 2008 6:57:28 AM

I am a convicted felon in the state of TN. On the 13 of this month I was on my own land (Private Property) and my neighbor called the cops on me for shooting outside at a barrel. The officer that came out there had a predispossed position that I was indeed a convicted felon because my neighbor told him so. Do I have any recourse for a defense against this case?

Posted by: Russe Hall | Mar 27, 2009 11:30:04 AM

Do you know if you can own a firearm in louisiana if you were granted Article 893. My brother and I are avid hunters, for a first ever arrest he received probation in drug court. He will graduate right on time with no infractions. He is worried about being able to hunt again.

Posted by: Rob | May 26, 2009 3:33:31 PM

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