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March 18, 2008

Get ready for a Second Amendment rumble, defense attorneys

In what I view to be good news for federal criminal defense attorneys, it appears from today's oral argument that the Supreme Court may be headed toward recognizing an individual right to armed self-defense protected by the Second Amendment.  Here is how Lyle Denniston at SCOTUSblog sees matters after the Heller oral argument:

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home.  But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon.  In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.

As I have highlighted in lots of prior posts (some of which are linked below), if individuals are recognized to have an enforceable right to have a gun for self-defense in their home, I think there could be real constitutional problems with broad federal laws that prohibit all felons from possessing any guns in any settings AND severe sentencing laws that might unduly chill an individual's efforts to keep guns safely in her home.

Some prior posts on Heller and the Second Amendment's potential impact on criminal justice realities:

March 18, 2008 at 12:44 PM | Permalink

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» The Gun Case from Crime and Consequences
The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN. CJLF did... [Read More]

Tracked on Mar 18, 2008 5:42:38 PM

» The Gun Case from Crime and Consequences
The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN. CJLF did... [Read More]

Tracked on Mar 18, 2008 7:25:35 PM

Comments

Having only heard the last 3rd so far, about the last 30 minutes, it appears Heller is arguing for a constitutional amendment that goes something like this: "The right to keep and bear arms, militia or not, shall not be unreasonably infringed."

Anyone else get that out of the arguments?

Posted by: George | Mar 18, 2008 2:15:06 PM

From the transcript:

JUSTICE GINSBURG: There is a lot of talk about standards and stop words like strict scrutiny. Does it make a practical difference whether we take your standard or the strict scrutiny that was in the D.C. Circuit's opinion? And specifically there is a whole panoply of Federal laws restricting gun possession. Would any of them be jeopardized under your standard? And the same question with the District scrutiny, does it make any difference?

GENERAL CLEMENT: In our view it makes a world of difference, Justice Ginsburg, because we certainly take the position, as we have since consistently since 2001, that the Federal firearm statutes can be defended as constitutional, and that would be consistent with this kind of intermediate scrutiny standard that we propose. If you apply strict scrutiny, I think that the result would be quite different, unfortunately.

pp. 44-45 of the .pdf

George, it's an awkwardly phrased amendment and your question is useless. Heller would argue that the DC government is arguing for a constitutional amendment that reads "the right of members of a state militia to keep and bear arms in connection with their militia duties shall not be infringed."

Posted by: | Mar 18, 2008 3:19:20 PM

Voting is a fundamental right, and states can take away the right to vote from felons. So I'm not sure that felon-in-possession laws would be in trouble post-Heller. Is owning a gun more like voting or more like the free exercise of religion (a right I assume cannot be taken away from felons)?

Posted by: DM | Mar 18, 2008 3:40:09 PM

The right to vote, unlike the right to bear arms, is not found in the constitution.

Posted by: | Mar 18, 2008 3:50:34 PM

Doesn't amendment XIX prevent states from denying the right to vote to rapists? "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex"

Posted by: S.cotus | Mar 18, 2008 4:01:42 PM

Since the right to bear arms is NOT applied to the states, as yet, it cannot be a fundamental right. I don't think the DC ban is constitutional, since the DC local gov is a creature of the federal government, and the Second Amendment clearly applies. But a fundamental right? I just don't see how you get there under the current state of the law.

Posted by: federalist | Mar 18, 2008 4:10:28 PM

It is hard to see the felon is possession laws falling no matter what - the argument for barring felons from owning guns is much stronger than the argument to bar them from voting.

Its also hard to see laws barring use of a firearm in commission of a felony falling since those laws bar specific acts and no one will argue that people have the right to bear arms to murder or rob people.

The extreme sentencing enhancements/mandatory minimums for holding guns during say a drug crime on the other hand, are likely to be on pretty shaky ground if the 2nd Amendment is an individual right. Of course, before defense attorneys get too excited, they should remember that hate crime laws have been upheld despite the fact that unlike the Second Amendment, the First Amendment's language is clear and makes no mention of regulations.

Fact is, its hard to imagine this Supreme Court doing much that will upset the cart against the prosecution and in favor of criminal defendants. A total ban is likely to be struck down, but chances are registration and licensing processing will be allowed. And that will be how most of the criminal laws will survive because suddenly, with the threat of confiscation of firearms no longer present, the law abiding gun rights crowd may well decide that registration is the best option for them to have guns but keep the laws which put others in jail because its doubtful that the NRA membership is going to be too upset if a drug dealer gets a longer sentence because they are carrying a gun. My guess that once the 2nd Amendment is recognized as an individual right (assuming the Supreme Court rules that way), the states and federal government will find ways which they can punish some people for having guns and that the Court will allow it.

Posted by: Zack | Mar 18, 2008 4:10:37 PM

Geezzzzzz - lets all get excited that even more people might get the chance to kill someone, with the Supreme Court's blessing. I mean, there aren't nearly enough guns floating around now, are there!

Posted by: peter | Mar 18, 2008 4:30:38 PM

peter, your post is stupidity masquerading as snark--the issue is not how many guns are "floating around", but whether law-abiding people will get to have them. People who want the chance to kill someone, i.e., criminals, already can get firearms.

I, for one, feel that we are safer if law-abiding people are allowed to keep and bear arms.

Posted by: federalist | Mar 18, 2008 4:46:53 PM

federalist -
I can see you lying in bed at night, gun in hand, just waiting to take a pop at someone who breaks into your house. Has the thought never entered your head that the likelihood of the transgressor carrying a gun increases with the threat within? And consequently the chances of injury and death? And if yours is the one safely locked up, who is more likely to suffer the injury or death? You have a weird sense of what is safe. This is another case where common-sense is seemingly being sacrificed to some anarchic sense of loyalty to historical words that can have no relevance to conditions today.

Posted by: peter | Mar 18, 2008 5:21:36 PM

3:19:20 PM, that is not the gist of what I heard. It was mostly about self-defense. The point is that Heller as the petitioner is calling for an amendment to the constitution and agrees that it should no longer read "shall not be infringed" but instead shall read "shall not be unreasonably infringed" or "shall be reasonably infringed."

The point is, by changing "shall not" without a constitutional amendment, Heller himself wants "judicial activism" while at the same time throwing federalism to the wind. In short, conservatives what everything they so often condemn.

Posted by: George | Mar 18, 2008 5:33:05 PM

Would someone like to guess how this ruling would affect someone like me who was convicted of a non violent felony marijuana possession in 1986. Will I be able to hunt or keep a firearm in my home. This is if there is a favorable ruling.

Posted by: Gary | Mar 18, 2008 5:37:54 PM

Gary, lawyers could maybe guess better, but my guess is a flat out no. This won't help you at all. Counsel for Heller's argument in a nutshell is "let's amend the constitution to regulate them, not me."

So, not unless the laws are changed.

Posted by: George | Mar 18, 2008 5:46:12 PM

peter, i make good dime, so I protect my children with an alarm system and do not have a gun in the house

but, were I to choose to have a gun, rest assured that I wouldn't have it in my bed--but it would be accessible, and I would have zero problems shooting to kill any intruder

Where people have guns, there are not a lot of home invasions. And where law-abiding people kill a criminal, there's one less criminal in the world--a good result.

Posted by: federalist | Mar 18, 2008 5:53:22 PM

Well said federalist. I feel the same way but in my case I would not legally be able to defend myself with a firearm. I am the convicted felon mentioned above who would have to wait until the police arrived at my very rural county home in North Carolina!!

Posted by: Gary | Mar 18, 2008 6:06:09 PM

http://gunlaws.com/

D.C. v. Heller Eyewitness - Pregame Report‏

FOR IMMEDIATE RELEASEFull contact info at end DATELINE: Washington, D.C. 3/17/08 24 Hours Prior to Heller Case
by Alan Korwin, Co-Author Supreme Court Gun Cases
More people are on line in front of the U.S. Supreme Court for the D.C.gun ban case tomorrow than seats are available, and the temperature ishovering above freezing, but that's not stopping them. Bob Blackmer and I were the first to arrive, Sunday night about 5 p.m.,answering the big question of -- Would two nights in advance be enough-- aside from did we have endurance to pull that off. A few moments later, Jason and Dan arrived from Pennsylvania withsleeping bags and the same question in mind -- would they be in time forthe biggest Second Amendment case in the nation's history, and, yes,they were. With no one else around, and the Sup. Ct. police officerpumped for all the info he might have (precious little), Bob and I left for our hotel, confident that we would be in time in the a.m., and Jason and Dan became numbers one and two in line, a distinction the mediawould dwell on the next day. (Reporters kept zeroing in on Jason sincehe was number one in line, and fortunately, he was articulate, a polisci grad, not the bubba the media so often isolates as a "typical"example.) Because the line formed two nights in advance (kind of), and because local ABC-TV carried that news (with images)and bloggers spread it,people began arriving first at midnight, and then at the crack of dawn,panicked about access. Bob awoke in the hotel and departed in time toarrive well before 8 a.m., making him 7th, and I ran around looking forpropane for his porta-heater (the airline allowed the heater but not thefuel). I was fortunate to have a reserved seat, so it didn't matter thatI arrived at 10 a.m., and that didn't matter either, since I was now#16. I was the only person, the whole day, schmoozing on the line,running errands for people, enjoying the atmosphere, but with a reserved seat and a bed waiting for me at night. People had full blown lounge chairs, sleeping bags, blankets, food... aregular shanty town developed and as police had advised, the line self regulated. Physical position was a non-issue, since everyone knew their place, and Sarah, a Harvard law student, took it on herself to start alist and gather everyone's arrival time and position number. People milled around at will, confident they would not lose their cherishedplace in line. It was a community. Almost everyone was a law student, almost no one would qualify as a "gunnie" (well, maybe a small handful) but nearly everyone was on theside of Heller, advocating for a strong Second Amendment. The conversations were electric, a bunch of well educated, thoughtful,intelligent people self selected for a historic moment. When was the last time you saw a line of people hanging out reading legal briefs? The promise was for 50 seats for the public, but the Marsahll's officewas clear to me that this number could change, and would only be known in the morning, giving a distinct feeling it would shrink as"dignitaries" decided to attend at the last minute. By 2:30 p.m. Monday, today, the day before the case, 32 people were inline, neatly numbered thanks to Sarah (and everyone in line ahead ofthem). The lucky (maybe) 50th person arrived at 4:45 p.m., and folks continued to arrive and queue up, hoping against hope for a greater number of seats, or line abandoners. No paid place holders were apparent. The most novel legal theories were: -- The case could be decided on standing, with the Court concluding Heller didn't really have any after all, and the case falling apart onthose grounds (highly unlikely, but it shook up conversations); -- The Court would parse "keep" and "bear," finding an individualright, but applying strict scurtiny to "keep" and rational basisstandard of review for "bear," effectively gutting the Second Amendment; -- A decision narrower than everyone expects would get a nine to zeroaffirmation of an individual right (a seven-to-two split got a lot ofvoice); -- The Solicitor General would recant his position (calling for reduced scrutiny and a remand of the case), artfully saying that was a mistake or oversight, an extremely unlikely but appealing (to some) possibility that would get Clements out of supposed hot water and be talked about,well, forever; -- No one expects anything but an individual right finding, but thelevel of scrutiny for any law anywhere was up for grabs; -- Obviously, no one has a clue, but you get the idea of what was goingon in the cold, windy, sleep deprived, hard scrabble concrete world ofHellertown in front of the Court. As for me, I'm sun burned, exhausted, under nourished, but at least in ahotel lobby, getting ready for what sleep I can and an early start towhat will be an amazing day tomorrow. I'll relieve Bob so he can use the Court restroom to shuck his thermals, freshen up, stash his goods in the Court lockers, grab some chow in the Court cafeteria (great food, lowlow subsidized prices), and join the rabble in the cheap seatsupstairs. Written without adequate review or a spell checker, I reserve the rightto change any of this... will attempt a swift review of the orals assoon after as I can muster. Alan. [email protected] Press, Phoenix602-996-4020http://www.gunlaws.com

Posted by: stiff | Mar 18, 2008 6:21:10 PM

Well, Gary, if it makes you feel better, I believe that some felons, after a stretch of law-abidingness, should be allowed to bear arms.

Posted by: federalist | Mar 18, 2008 6:21:40 PM

Gary, have you looked into relief under 18 USC 925(c)?

Posted by: Kent Scheidegger | Mar 18, 2008 6:32:44 PM

Thank you federalist it does make me feel better. It has been 22 years since that crime and i have accomplished a lot as far as family, education, and employment. It has not been easy carrying a ball and chain around my ankle(felony).

Posted by: Gary | Mar 18, 2008 6:44:43 PM

Kent I have tried to apply to ATF to get firearm priviledges restored but I was informed that congress is no longer funding the back ground checks for convicted felons. I am not sure this is what you are referring to.

Posted by: Gary | Mar 18, 2008 6:51:18 PM

Gary, federalist
I'm happy to know that your lives are totally unaffected by your inability to own, or choice not to keep, a gun in your home. Any sense of deprivation is entirely within your minds, and meanwhile you and your families are safer for it. As federalist has determined for himself - there are better and safer alternatives. To encourage others to think there are not does society harm, and perpetuates the sense of fear that drives the sentencing regimes discussed, and largely abhorred for excess, on this blog.

Posted by: peter | Mar 19, 2008 2:58:24 AM

"Well, Gary, if it makes you feel better, I believe that some felons, after a stretch of law-abidingness, should be allowed to bear arms."

This appears to be soft on crime. These people are dangerous and they might re-offend. Your lack of concern for the victims of future crimes is telling of where your sympathies lie.

Posted by: S.cotus | Mar 19, 2008 6:30:29 AM

S.cotus are you serious? You are way off base. You are assuming that all convicted felons are dangerous? There are probably hundreds of thousands of convicted non violent felons in this nation. My argument is for non violent felons that have a long period of time not re-offending. I happen to be one of these people.

Posted by: Gary | Mar 19, 2008 7:29:24 AM

Gary, Since you are a convicted felon, I don't think you are really in a position to tell me that I am off-base. I figured since Federalist has gone soft (usually he wants to put everyone in jail or have the state kill them), I would pick up the slack.

So, here goes:

Society made a mistake by allowing people that later became felons to be born. We should not make that mistake again by allowing them to have guns.

Posted by: S.cotus | Mar 19, 2008 8:35:06 AM

S.cotus
Your offensive retort calls for an apology.

Posted by: peter | Mar 19, 2008 9:27:37 AM

If you are "offended" by something, you should identify a flaw in my logic. However, since you did not do that, I can only conclude that 1) my argument is without flaw; and 2) I made it so powerfully that it had a visceral effect upon you.

(Besides, who gets offended anymore? That is so freshman.)

Posted by: S.cotus | Mar 19, 2008 9:52:14 AM

S.cotus
I think what I was meant was you - give the term "A$$hole" an entirely new dimension.

Posted by: peter | Mar 19, 2008 12:29:25 PM

"Society made a mistake by allowing people that later became felons to be born. We should not make that mistake again by allowing them to have guns."

You are really , nah I'm not going to resort name calling but saying that people who'd had made mistakes should have not been born. Wow, why were you born? Did society make a mistake with you. Oh, I forgot, you're a lawyer. You are exempt.

Posted by: | Mar 19, 2008 12:41:39 PM

If society is trying to continuously better itself, and yet it still must deem a percentage of its members to be “felons” then we must admit that something went wrong along the way. Why is it that we allow our society to continually expand, yet at the same time imprison a percentage of our members? Unless you are arguing that a certain percentage should always be imprisoned (or deemed to be felons), you would agree with me that some people should never have been born.

Posted by: S.cotus | Mar 19, 2008 1:39:40 PM

S.Cotus,
that is whats so great about our country that we are able to express our views no matter how flawed they are-Even yours. It sounds as if you were someones victim at one time in your life.

Posted by: Gary | Mar 19, 2008 1:46:53 PM

Gary, Because you cannot point to a single flaw in my logic, it would seem that you have conceded my points. In order to make a persuasive argument, you would have needed to identify the points you disagree with, and then explain why they are wrong. You did not do that. Instead, you opted to say, “It sounds as if you were someones victim at one time in your life.” Since you have conceded my points, I do not think I need to add anything else. However, I should point out that I usually am the one mocking the “Victims’ Rights Industry.”

Posted by: S.cotus | Mar 19, 2008 1:51:10 PM

S.cotus,
After your above words it does not surprise me that you Mock victims. You must be real proud.

Posted by: Gary | Mar 19, 2008 2:59:15 PM

I mock the "Victims' Rights Industry." I think it is a sick ploy by some people (unfortunately, many of them are lawyers) to make money of a tenancy to blame a reasonably fair legal process for peoples' personal pain.

I also mock people that attempt to assert "victim" status as a means to erode our constitution guarantees. And, I do tend to mock people that overstate the harm done to them, or attempt to blame others for their personal failings.

Again, you have not explained why I am wrong. You have done little more than insult me.

Posted by: S.cotus | Mar 19, 2008 3:41:13 PM

Don't worry Gary, everyone knows S.cotus needs to get out more.

Posted by: federalist | Mar 19, 2008 4:02:19 PM

Mockery is S.Cotus's thing... appeals to emotion/decency are basically requests to be the target of further mockery.

S. Cotus writes:

If society is trying to continuously better itself, and yet it still must deem a percentage of its members to be “felons” then we must admit that something went wrong along the way. Why is it that we allow our society to continually expand, yet at the same time imprison a percentage of our members?

This raises more questions than can be answered in a blog comment. Why, in your view is a decision to imprison someone equivalent to saying that that person never should have been born? It assumes an absence of free will and assumes that "nature" is everything and "nurture" is nothing. Those are fairly bold statements to make without any support in logic or evidence.

Have I misunderstood? You've posited in the past that there's some kind of optimal incarceration percentage that's close to 50%. Now you seem to say that it's zero. I'm beginning to wonder just how seriously we can take you.

Posted by: | Mar 19, 2008 4:18:18 PM

You can take me as serious as you want to.

I will concede that this is a problem in legal theory that cannot be answered in a blog post. But, here is the problem.

In society (at least in the US), we have almost unrestrained freedom to procreate. From an early age, by law, children are integrated into society. They are given an “education” (I will leave out quips about public schools here). They are provided with medical care and food. States even have special agencies to make sure that children are growing up normally enough. In short, at least according to law, nobody is born with any “corruption of blood” or born into a caste that is considered outside society.

Yet, somehow, society gives up on a segment. It decides that some people are not worth taking care of and should be 1) imprisoned; 2) killed; or 3) marked as being unable to comport with society’s norms (we call these people felons). Now, I some would say that regardless of any “free will” of the felon/prisoner/executee, society failed. After all, if society really cares about integrating every baby into it, then society should realize that every felony conviction is a failure of itself to properly raise and train a baby. What was once a cute baby that was equal to all other babies is not a threat to society itself and must be isolated. Of course, we have people that will scream “ah, but felons chose to kill” but they are simply trying to blame someone else for society’s problems.

So, the first question is: where did society fail? In creating a felon, did it fail by not properly integrating them? Or, was the felon so stubborn in his free will that there was nothing we could do? If you think that the latter is true, then you must conclude that the mistake was letting the felon be born. Or, if you conclude that society screwed up somewhere post-birth, you must conclude that it wasn’t the felon’s fault, but rather society’s fault. Strangely, upon conviction of defendants, few judges seek ways to reform society.

Or perhaps a middle ground is just to concede that there is a “right” amount of people to throw in jail. Maybe the best we can do is create a “pretty good” society. It will be a society where most people can conform to basic norms, but some defects will need to be captured (as early as possible) and, after a ritualistic trial and putative resolution of certain basic factual issues, incarcerated or killed. If we set this ideal percentage at zero, we wouldn’t be doing our job. So, the ideal number is somewhere north of zero. But, nobody on here will seriously tell me how many members of society should be in jail. I threw out a number: 35%. Nobody will tell me what a good number is.

Posted by: S.cotus | Mar 19, 2008 4:49:16 PM

Interesting points.

So, the first question is: where did society fail? In creating a felon, did it fail by not properly integrating them? Or, was the felon so stubborn in his free will that there was nothing we could do? If you think that the latter is true, then you must conclude that the mistake was letting the felon be born. Or, if you conclude that society screwed up somewhere post-birth, you must conclude that it wasn’t the felon’s fault, but rather society’s fault. Strangely, upon conviction of defendants, few judges seek ways to reform society

I disagree with the bolded sentence. It's not an either-or thing. Prisons, I think, are compromise between liberty and safety and a recognition of the limited resources we have. We don't regulate reproduction on a broad scale like China does, we don't brainwash people on a broad scale like they do in sci-fi movies, and without forcible compulsion or a huge lowering of standards, there will never be a perfect match between society's expectations and what people do. That doesn't mean that society's to blame, however, or that criminals lack moral culpability.

The main disagreement I have with your argument is that it assumes that society has thrown away every single felon. Prison is not just for incapacitation. It's also for deterrence and for retribution. Some people can be deterred and others can be said to have "paid their debt" such that there's no good reason to continue to deny them their rights. As Prof. Berman has mentioned before, most people don't think that society failed somehow with Martha Stewart or that she continues to present a danger to the rest of us.

Posted by: | Mar 19, 2008 5:40:56 PM

There is a considerable historical record which supports the view that the Framers of the Fourteenth Amendment intended to incorporate the right to bear arms from the Second Amendment and much or all of this was to protect the freedmen.

Any criminal offense should be limited to actual discharge of the weapon without cause or flourishing without cause.

In Missouri we successfully amended our concealed weapons laws to allow regulated use and in addition unregulated possession of a firearm in a vehicle. But by regulating--a concealed permit system-- we have also offended the Second Amendment rights.

Laws that prevent a convicted check forger from going into the woods for squirrel hunting are absurd.

Posted by: M.P. Bastian | Mar 20, 2008 11:35:28 AM

Mar 19, 2008 5:40:56 PM, Unfortunately, my argument is obscured by overcriminalization. In the case of Ms. Stewart, most people can’t understand what she did, and why a similarly-situated Bushie (as opposed to a Clintonite like Stewart) was given a reprieve. There hasn’t been much effort to even explain why people like her (or him) should be punished, because it would probably involve the DOJ saying “She should have refused to answer our questions.”

As a practical matter, felons are denied many rights, and, indeed, are stigmatized in society. We do seem to allow them to do some things, but there is little indication that society considers prisons to be some kind of normal “corrective” process that corrects any defect in society.

Assuming the truth of the deterrence argument, I still don’t think it matters: any jail term is an acknowledgment that some member of society is defective and simply can’t handle himself. It might have other effects, but those effects are simply a means of saying something like “Look what he did... if you do that, we will consider you worthless and do the same to you.” This seems a strange way to claim that society is working: that it can isolate and stigmatize people and people live in fear of such penalties. But, I guess if you consider that normal (as I guess the deterrence theorists do), you have a point.

Mr. Bastien, you said “There is a considerable historical record which supports the view that the Framers of the Fourteenth Amendment intended to incorporate the right to bear arms from the Second Amendment and much or all of this was to protect the freedmen.” Like what? You really need to provide support for such wide assertions. By the same token what sort of support is there for the notion that the framers of the 14th amendment intended that to apply to DC?

You really need to do better if you want your arguments to be taken seriously. You also need to address the issue that there might not have been a common law right to hunt, but rather just for self-defense.

Posted by: S.cotus | Mar 20, 2008 1:18:29 PM

Assuming the truth of the deterrence argument, I still don’t think it matters: any jail term is an acknowledgment that some member of society is defective and simply can’t handle himself. It might have other effects, but those effects are simply a means of saying something like “Look what he did... if you do that, we will consider you worthless and do the same to you.” This seems a strange way to claim that society is working: that it can isolate and stigmatize people and people live in fear of such penalties. But, I guess if you consider that normal (as I guess the deterrence theorists do), you have a point.

Maybe this works for prison, but we punish people to correct their mistakes all of the time. Most children have had their toys taken away, been sent to their room, or been put in "time out." Adults have been docked wages, given parking tickets, etc. All of those things work on some level to correct behavior without necessarily implying that the person is defective.

I think that some people are beyond help and are more or less the equivalent of bad bacteria in society, but I wouldn't say that about 100% of the felon population (or even about what the felon population would be without overcriminalization).

If the Supreme Court ends up addressing the scrutiny issue in Heller and decides that it's only rational basis scrutiny, then this becomes an easy question. If it's strict scrutiny, then the felon-in-possession laws would probably need to be more narrowly tailored to apply only to a subset of felons.

Posted by: | Mar 20, 2008 4:03:07 PM

For an interesting and actual history of the 2A, here's a good read:

The Right to Keep and Bear Arms

Posted by: George | Mar 22, 2008 2:10:43 AM

Man is this the place for fear. The felon in possession laws are not in any way, shape or form in jeopardy. Not only can/do we suspend the right to vote but also suspend the protection for search and seizure. In some states if you have committed perjury, theft by false pretense and other "character" crimes, you can NEVER testify in a court of law. This is nothing more than fear mongering.

Mark

Posted by: Mark | Mar 24, 2008 11:32:53 PM

Does anyone else think that it is interesting that the armed services ( frequently in this war ) allows waivers for some non violent felons to serve. When they become civilians after their service they can no longer have firearms. This would seem unfair to me. Any thoughts.

Posted by: USMC | Mar 25, 2008 5:31:08 PM

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