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June 26, 2008

Justice Scalia sells out felon gun rights, but on what basis exactly?

Here are sets of quotes from the majority opinion in Heller that I have a hard time adding up:

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.  (Slip op. at 10, emphasis added.)

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.  (Slip op. at 44, emphasis added.)

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.  The [DC] handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.  The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.  Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.  (Slip op. at 56-57, emphasis added.)

A broader point about the laws that JUSTICE BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties....  [W]e do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him.  The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. (Slip op. at 61-62, emphasis added.)

Summing up, it would seem that the majority holds that, pursuant to the Second Amendment, "all Americans" have an "individual right to use arms for self-defense."  And, the Second Amendment would be most problematically transgressed when this right is severely restricted in the "home, where the need for defense of self, family, and property is most acute" through the threat of years in prison rathen than just a minor fine.

As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms.  After all, felons are Americans with a need to protect themselves and their families through keeping guns in their home.  And yet, all felons (even non-violent ones like Lewis Libby and Martha Stewart) face the threat of 10 years in federal prison for just possessing a firearm. 

Nevertheless, the majority opinion boldly and baldly asserts that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Slip op. at 54.) 

Really?  How can that (unjustified and unsupported) dicta be squared with all that has been said before?  To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry "offers no way to harmonize its conflicting pronouncements."  Time and litigation will tell if holdings or dicta end up dominating the application of the Second Amendment in future cases.

June 26, 2008 at 11:12 AM | Permalink

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Comments

Doug, since time immemorial, criminals have lost certain rights. It's that simple. The right to vote is precious, and it can be taken away.

Posted by: federalist | Jun 26, 2008 11:26:09 AM

So federalist, is it your position that a state can someone who commits perjury from practicing his or her religion? We've all read the trite point that criminals may lost certain rights. The question becomes, then, whether they may arbitrarily lose rights that have no connection with what they've done.

Posted by: | Jun 26, 2008 11:36:21 AM

Let me try again:

So federalist, is it your position that a state can ban someone who commits perjury from practicing his or her religion? We've all read the trite point that criminals may lose certain rights. The question becomes whether they may arbitrarily lose rights that have no connection with what they've done.

Posted by: | Jun 26, 2008 11:38:02 AM

Felons also retain their rights to be free from having troops quartered upon them in peacetime without their consent, and in wartime, except as provided by law, under the Third Amendment; their rights to the due process of law, and freedom from compulsory self-incrimination, under the Fifth Amendment; their rights to have the assistance of counsel, to confront the witnesses against them, and to have their fate in a criminal case determined by a jury, under the Sixth Amendment; their right to a trial by jury in Federal court in an action at common law, where the amount in controversy exceeds $20, under the Seventh Amendment; and their rights to be free from excessive fines, from cruel and unusual punishments, and from having to post excessive bail, under the Eighth Amendment. The Fourteenth Amendment prohibits states from abridging the privileges and immunities of citizens of the United States. Heller does not seem in any way to turn upon citizenship, and thus does not make prohibition possible if one is an alien. Therefore, what is there about the Second Amendment, or about its right to possess weapons one might reasonably use in self-defense (which seems to be the issue the Court would like us to focus on in Heller), that excludes felons from the protection of this provision of the Bill of Rights?

Posted by: Greg Jones | Jun 26, 2008 11:45:59 AM

There are certain rights that cannot be taken away. The "inherent right of self-defense" in one's home may be one of them.

There are two separate issues/groups in this debate. First, there are violent felons and non-violent felony (and by non-violent, I mean truly non-violent like perjury, insider trading, tax violation, environmental violations, ect.) Second, there is "inside the home" versus "outside the home". One could picture a grid with two collums and two rows, and in each box depicting the validity of taking away the right.

In my opinion, non-violent felons, at a minimum, must retain their inherent right to self defense in the home. Outiside of the home is not as certain, and this is where the "standard of scrutiny" is important.

Violent felons should also maintain their inherent right to self defense in the home. However, IMO, they can loose it outside of the home, where the right is not "most accute."

Posted by: DEJ | Jun 26, 2008 11:47:04 AM

They did not use language "for example" or "such as" felons or mentally ill. The majority in SCOTUS used clear language on whom may be restricted.

Lautenburg seems to be in jeapordy, as well as the California "ugly gun" bans. Extremes of licensing requirements for purchasing/possessing a firearm are also out the door.

Posted by: Mike | Jun 26, 2008 11:50:27 AM

I wonder if we are jumping to conclusions. Did Scalia (in what seems to amount to dicta) foreclose the possibility that some firearm restrictions on felons are unconstitutional (particularly given the reliance on self-defense)?

Perhaps he only means they are not not necessarily unreasonable...there may be some leeway to require the feds to insert a "reasonable component" to felon firearm bans. (For instance, creating a reasonable application process for non-violent offenders to regain the right, putting time limits on the ban, or requiring the government to exercise reasonable and non-arbitrary discretion in deciding whether a certain convicted felon should be allowed to possess a firearm). Such reasonable restrictions, IMHO, would be more reasonable than many restrictions placed on convicted sex offenders.

I would not foreclose the possibility of someone convicted of a minor non-violent felony decades ago successfully challenging the ban. (Perhaps he could be an otherwise upstanding citizen, have a family of four, and live in a dangerous neighborhood too).

Posted by: Nathan | Jun 26, 2008 12:00:39 PM

Based on an initial reading of the majority opinion, the real "Heller challenge" lies in challenging a charge under 18 USC 924(c)(1)(A)(i).

Why should someone (who is not otherwise a prohibited person) involved in a drug conspiracy face a separate 5 year mandatory minimum for exercising his fundamental right to self defense?

Posted by: Anon. Law Clerk | Jun 26, 2008 12:18:40 PM

The state is entitled to opine that someone who commits a felony is more likely to use the weapon for illegal purposes than for (lawful) self-defense purposes.

Posted by: Steve | Jun 26, 2008 12:19:14 PM

Mike - did you actually read the Court's opinion? Scalia specifically states that governments are allowed to require a license for the purchase or possession of a gun as long as they are not being denied for "arbitrary and capricious" reasons. And that was not dicta, but instead it was part of the holding (that DC would be required to grant Mr. Heller a license if he met their criteria).

Make no mistake - this sort of thing is exactly why the NRA never wanted this case before the Supreme Court. Far from saying existing gun control laws are in jeopardy, the majority at the end of its opinion actually seems to be calling for more gun control laws to be passed!

Wonder which one of the 5 justices that was needed for to get them to vote that a total ban was out. I repeatedly predicted that this opinion would ultimately be a big zero (and maybe even a hidden victory for gun control advocates because it would legitimize most forms of gun control short of an outright ban). I think that is exactly what happened.

Posted by: Zack | Jun 26, 2008 12:26:41 PM

Its is really simple. It use to be that the ATF could reinstate firearm priviledges until congress stopped funding I believe 1992. I think it might be time to start funding that program again. The people who apply would most likely be reformed felons and would think twice before committing another felony.

Posted by: noway | Jun 26, 2008 12:28:25 PM

I'm not surprised at all that the felon in possession laws would not be affected but is the federal laws banning felons from owning firearms subject to amendment now? I mean there are a lot of nonviolent offenders with old felony convictions and I mean some are very old, that have straightened out there life and should not be subject to a blanket federal prohibition. Having said that and taking note of 18 U.S.C. 921 (a) (20), I'm glad I live in Louisiana where felons can own firearms if they keep out of trouble for 10 years from the date they complete their sentence and in some case of nonviolent non enumerated offenses they can get the right back upon completion of their sentence. See RS 14:95.1, Article 1 Section 20 of the Louisiana constitutio and United States v. Dupaquier. See also the Louisiana first offender pardon statute.

Posted by: Paul | Jun 26, 2008 12:31:47 PM

I think the greater concern with the opinion is regulation of types of weapons. Scalia recognizes striking down the handgun ban is in tension with the preferatory clause. The majority provides absolutely no guidance on what types of guns may be regulated and what types may not. You may disagree with the majority's statement that this opinion does not disturb the present rulings upholding felon is possession laws but the Court is fairly clear on that issue. They didn't say "we express no opinion," but said "no doubt should be cast." Rightly or wrongly five Supreme Court justices have said (albeit in dicta) that the felon in possession cases are still good law notwithstanding Heller.

From page 55 of the slip opinion:
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

But arguably one of the reasons some of these guns are not "in common use" is because there are federal and state regulations which ban or severely limit their purchase. Apparently, the government may ban some guns, but not others because they aren't in common use because they are illegal. In other words the guns may be banned because they have been banned, a wholly unsatisfactory conclusion.

The court does say that the prohibition of dangerous and unusual weapons is permissible, but provides no guidance on what that means. Unusual suffers from the same problem as "common use." If unusual were enough D.C. might have claimed pistols were unusual in D.C., and therefore might be banned because they have been banned.

Dangerous might be workable, but is problematic. Consider for instance the sawed off shotgun the supreme court considered in the Miller case. The sawed off shotgun is not in the ordinary, plain sense of the word more dangerous. It does not fire faster, the shorter barrel length decreases the energy of the pellets and diminishes the guns effective range. But it does make the gun more concealable and so more dangerous in the sense it is more adaptable to illicit use. But how about a high capacity magazine for a pistol? Does that make a pistol more dangerous? Dangerous might work for some obvious weapons (e.g. an AK-47 is more dangerous than a 9mm semi-automatic pistol but how dangerous is dangerous enough to regulate?). But there are significant problems with its application. The majority seem to indicate the fully automatic versions of the M-16 may be banned, but does that mean the Government can ban the civilian semi-automatic versions? I'm not sure that the civilian version is substantially less dangerous within the meaning of the word. Its more common, but again that may be because federal law has restricted the purchase of fully automatic weapons for some time.

Posted by: NK | Jun 26, 2008 12:41:08 PM

Mr. Heller is/was a resident of DC with no right to vote or representation in congress and as a consequence had to sue in federal court over a city ordinance? It seems to me the benefits/damage of this case are very limited. Did the supremes select this case because it was narrow to begin with?

Posted by: John Neff | Jun 26, 2008 12:54:29 PM

wonder if we are jumping to conclusions. Did Scalia (in what seems to amount to dicta) foreclose the possibility that some firearm restrictions on felons are unconstitutional (particularly given the reliance on self-defense)?

Perhaps he only means they are not not necessarily unreasonable...there may be some leeway to require the feds to insert a "reasonable component" to felon firearm bans. (For instance, creating a reasonable application process for non-violent offenders to regain the right, putting time limits on the ban, or requiring the government to exercise reasonable and non-arbitrary discretion in deciding whether a certain convicted felon should be allowed to possess a firearm). Such reasonable restrictions, IMHO, would be more reasonable than many restrictions placed on convicted sex offenders.

I would not foreclose the possibility of someone convicted of a minor non-violent felony decades ago successfully challenging the ban. (Perhaps he could be an otherwise upstanding citizen, have a family of four, and live in a dangerous neighborhood too).


What I'm thinking is that congress may now ammend the federal firearms law, specifically 922 (g) and 921 (a) (20), so that nonviolent felons can enjoy the their second admendment right with out having to qualify under such strict exemptions as layed out in 921 (a) (20).

Posted by: Paul | Jun 26, 2008 12:58:05 PM

Hi,

I'm a patriotic blogger, 7th generation American. I'm named for my 7th Great-Grandfather, so really more than 7 generations, but he was riding horses in the revolutionary war to the Continental Congress with important documents and such so they made the statue of him. Pidgeons like it, :)

Scalia is in felony violation of the USA Patriot Act as he persists in maintaining the false information on terrorism he provided in his recent supreme court decision regarding the Guantanamo and other terrorist detainees.

http://www.huffingtonpost.com/marjorie-cohn/scalia-cites-false-inform_b_108682.html

Posted by: PatriotAct | Jun 27, 2008 3:21:02 AM

So, how would this square with the (moderately clear) right to vote and losing that right upon the conviction of a felony. Is that also an area in which you would argue that we have a defect in constitutional reasoning, Prof. Berman?

Posted by: Jonathan | Jun 27, 2008 1:05:55 PM

He wouldn't argue that because he's probably aware that Section 2 of the 14th Amendment provides support for felon-disenfranchisement.

Posted by: | Jun 27, 2008 1:34:41 PM

DAB, I am a Colorado citizen that was wrongly convicted. Not my opinion DAB, buddy I have court transcripts that show it!

To the rest- Whoever thought that all Americans have rights clearly has to be stoned. You lose rights at the whim of the system, even if you're not a criminal. They can strip you of more than just the right to defend yourself, they can (and have) strip you of the right to a fair trial. They can strip you of your freedom of religion. The ACLU fought and won a battle over a law that stopped felons from voting. Now they can vote. But the ACLU won't touch the right to defend yourself. We have to do that ourselves.

Posted by: Colorado citizen | Jun 28, 2008 6:33:43 PM

The now-unconstitutional sentencing guidelines already distinguish between felons. Firearm possession by a felon not convicted of a violent or drug crime is an automatic level 6 as long as the firearm is possessed for a lawful purpose. It seems a small leap for the courts to allow non-violent felons to possess firearms...

Posted by: Matt | Jul 3, 2008 6:16:35 PM

Zack - Had you also read the opinion, Scalia quite clearly required a license to be issued to Mr Heller if he was not otherwise barred from one - and Scalia explicitly stated weapons are prohibited to felons and the mentally ill. He wrote that twice in his opinion.

Clearly, there is no licensing requirement past that check that would pass his version of "constitutional muster". "Arbitrary and capricious" would be requiring training, the location of your home, your reason for purchase, etc. All fees are already unconstitutional in order to practice a constitutional right.

Posted by: Mike | Jul 3, 2008 11:35:59 PM

I'm a felon.
When I took my Alford Plea to an attempted charge, my alleged crime wasn't considered violent. Because of a change in wording, I'm now, many years later, considered a violent offender.
So according to many posters here, before the courts changed my status, it would have been A-OK for me to protect my family, myself, and my business with a firearm, but now that I'm a "violent" offender, I can no longer be trusted not to "go postal" and gun down my fellow citizens?
Need I remind you that, were I to decide to break the law by killing people I'd not balk at the idea of illegally possessing a firearm?

DAB: I'm just a second-class citizen

Posted by: Never been to Whitechapel | Jul 23, 2008 8:45:01 AM

i am a convicted felony a low grade the lowest non-violent i cant protect my family plus i was convicted of a non violent crime convicted for protection because of this i am now a convicted felont 2 years but served 14 months for good behavior. the people i tried to help well they had to go to court as a person that had the crime forced on them numerous time the court found the people nothing wrong they had the proff they said because i intervene justice was served. homemaker disable disable at the time

Posted by: | Jul 28, 2008 7:33:08 PM

How would the court ruling affect my one and only run in with the law.
They confiscated my rifle. made me forfeit it.
What about drug user (marijuana) In possession of firearm. Legal Rifle found in home safe with small bag of pot. I have federal sentencing in court next month. Possible 10 years. Is this reason for appeal.?

Posted by: ed | Jul 28, 2008 9:52:47 PM

I've become more in touch with this issue over the past couple of years. I'm 52 and at age 17 in 1973 I was arrested and charge with the offense of burglary. 3 of us broke in to a doctor's office. Myself and one of the others were caught. While out on bond I was arrested (not convicted) for possession of a couple of joints. The arrest caused me to be sentenced to 2 years in prison. I served my time and completed parole. At that time I was not particularly concerned about gun rights. I worked and have never been convicted of a crime except for a DUI in 1985. After the DUI I woke up, went to college, graduated with a MSW and have worked as a clinical social worker in addictions, psychiatry, college counseling center, and as a family therapist working with juveniles and their parents who are at high risk for criminal convictions. I'm married with no children and own my home in a suburb. We have had a few "strange" visitors but I've not been concerned with the need for a firearm to protect our home. I work with some very rough families and in some tough neighborhoods where self-defense awareness is a necessity. Now the best I can do is duck or accelerate the gas pedal.

About 2 years ago I realized that I'm not in the shape I was in the past and if someone attempted to harm me or my family the likelihood of being able to defend us was pretty poor. I applied for a pardon but was denied because the governor is "very conservative". The prosecutor of my case supported my application for the pardon.

I've been researching and education myself about the felon with firearm issue and my opinion is that the underlying intent of this was to remove access to firearms in the urban ghettos. I consider it to be discriminatory because the law came about during the Civil Rights era and rioting in the late 60's. (BTW, I'm white).

I'm adamant that restricting a felon's right to own firearms discriminates against them. The 2nd Amendment is the only right that is entirely restricted for a crime. I wonder if those who use religion as an excuse for their crimes should have their religious freedom restricted. Does an "inciting to riot" or "threat to harm" offense cause someone to lose their right to free speech. It doesn't.

I wish this law would be overturned, but I know its an apostasy to many that a felon should have a 2nd Amendment right. My best hope is a pardon which is not likely unless I can make a large donation.

Posted by: Bruce | Aug 6, 2008 8:37:41 PM

Do like I do. I'm a convicted felon but I have firearms. Some laws you just ignore. I'd rather be jailed for shooting someone proteting my home than be 6ft. under. Just be careful.

Posted by: Glenn | Aug 15, 2008 6:11:41 PM

Question, Can a member of a felon’ family have a gun in the same home as the felon, if not. The member of that family loses their rights , say man and wife, Husband is a felon, wife non- felon

Posted by: question | Aug 17, 2008 10:21:32 PM

My son is a convicted felon and was charged with possession of a firearm and the bad part is they didnt find a weapon on his person they found it on the ground in the dark and said it was his mind you this was a crime area where anyone could have put it there because police where around. Now they didnt do balistics on the weapon to see if his finger prints where on it they also said he stole it from a police in texas then turned around and said they made a mistake it was brought at action some is not telling truth they went by the word of police but they lie to they are just human just like us. can any tell me what is the procedure for convicting a felon with firearm very mad mom at or justice system.

Posted by: Tanya | Aug 21, 2008 11:53:45 PM

This is tanya again email me angleeyes45@aol.com

Posted by: Tanya | Aug 21, 2008 11:57:46 PM

Lousisana Law what is the procedure for conviction?

Posted by: Tanya | Aug 22, 2008 12:00:40 AM

The united states justice system is just as bad as its health care system. When presidents and politicians can lie to the people on prime time TV, what hope do we have that a normal citizen has a true chance of justice. Unless your rich and famous or connected you are out of luck. There is no hope for justice in America. Most people don't see the violations of rights and written law until its to late. Like me, I thought a trial by jury of your peers was just that "a trial by a jury of your peers" Well its not. Its a trial buy a jury of prosecutor supported elite citizens supporting the desired outcome.

Posted by: anon | Aug 30, 2008 5:03:12 PM

Obviously the ban on felons possessing handguns is a hat-tip by Scalia to the "evolving standards" / "living Consitution" wing of the Court. [[I'm being tongue-in-cheek: I'm sure there is a good originalist argument against felons possessing handguns, but there's no consistent way for the minority in Heller to protest Scalia's conclusion using their own methodology]].

Posted by: AndyK | Aug 31, 2008 2:59:44 PM

Scalia and this gang of co-conspirators didn't interpret the Second Amendment. They just patched up a "solution" to please some but essentially left the status quo unchanged.
If Scalia and his cronies had had basic independent judicial reasoning they would have recognized that Congress and the States have No Constitutional authority to "regulate" the Second Amendment because the Amendment grants no such right to either.
In fact, nothing in the Second Amendment states that " Congress and the States or Congress or the States SHALL have power to enforce this Act by Appropriate Legislation".
This is pure Tyranny no matter how Scalia puts it.
As for the so-called "Interstate Commerce Clause", this act not only didn't give any right to Congress to "Criminalize" Intestate Commerce (Regulate Only) but it was foreclosed, became null and void by the passage of the Amendment to the Constitution which clarified the limited power of Congress while expanding the greater power of the States and the People of every State.
Scalia's mind is degenerating rapidly and has limited legal knowledge of what's really happening.
When he says that "nothing in our opinion should be taken to cast doubt on longstanding prohibition on the possession of firearms by felons and the mentally." he is not telling the truth.
What he says only applies to people convicted of federal Felonies and not to those convicted of State Crimes who can by application of State Laws regain easily the right to vote,to run for office and serve in a jury thereby re-acquiring the right to possess firearms and even satisfy federal rules.
I believe that now it's time for person with a federal felony to come forward a generate another review on this case.
Otherwise at some point, possessing anything manufactured in another State could be a Felony for people already convicted of a prior felony!!!

Posted by: Allisio Rex | Sep 19, 2008 2:48:40 PM

Job: history researcher.
"Law enforcement agencies and personnel have no duty to protect
individuals from the criminal acts of others; instead their duty
is to preserve the peace and arrest law breakers for the protection
of the general public." (Lynch v. NC Dept. Justice)

". . . a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen."--Warren v. District of Columbia, 444 A.2d 1 (D.C. App.181)

If there is an individual right to self-protection, and there is no right to police protection, then how can the felon exercise the right to self-protection where police protection is denied?

Do they become wards of the state, given a right to police protection, or does the state relinquish their right to self-protection, while simultaneously maintaining their power to not protect? There is a moral conundrum there. Are they less worthy of protection, or self-protection?

Further, where they are pushed to the edges of society, is it any better for them, where they live in a more dangerous environment, to lack the power as well as the right to self-protection? If they can be punished for exercising the right to self-protection, is it still remaining a right?

Posted by: Tried by conscience | Oct 9, 2008 2:29:26 PM

US V Larry W. Campbell cr s 03 0483 wbs gghp

My understanding , which is not from personal experience at all, but just from talking with Judges who do these ,is that they issues hundred or thousands of these

and that all the movants have to do is come in and say basically I’M afraid of my boyfriend or my husband , and they get this order, Now, is there more required that.
Movant was found Guilty based on no proof required per the above statement by Federal court judge Shubb
Court record transcript of Jan 7th 2005 page 155 to 167
Jan 7th 2005 page 169 Court “ But what is your understanding of what has to be proven at the hearing, other than the fact that the women is afraid
Of him/
Attorney Smith government, the statute does not speak to that, it gives the judge discretion

Posted by: larry | Oct 10, 2008 6:27:15 PM

I am a convicted felon. Student Financial Aid Fraud. Can anyone make a legitimate argument as to how this effects my ability to safely and legally operate a firearm?

Posted by: Jonathan Richards Ex Federal Prison Inmate | Nov 24, 2008 7:24:29 AM

I was convicted of unauthorized use of a motor vehicle at age 18 in 1966 in Virginia.Recently the Govenor of Virginia restored all my rights except the right to own a gun. Virginia says get it from from my residence state. My residence state(La.) says get it from Virginia. Now I live and work in a hurricane prone area and need to be on the job as essential personnel(federal) for hurricanes.Post katrina it was very scary to be in New Orleans with no self-defense. If anyone reading this decides they need a guinea-pig to challenge this unfair right of non-violent felons to own a gun please contact me.jamesmetairie@yahoo.com

Posted by: jack | Nov 24, 2008 12:05:48 PM

i,m retired united states merchant marine with 28 years service . presently federal blue collar employee with over 12 years service. aged 60 and still can,t have a gun for home defense,etc.

Posted by: jack | Nov 24, 2008 12:18:40 PM

I too, am a convicted felon. The image that most people think of when someone says the term "convicted felon" is some nefarious person lurking in the shadows waiting to do evil things to others. But the reality is that as the web of laws grows larger and larger, so does the corral of malum prohibitum laws and victimless crimes for which we may all be prosecuted. In the early days, being a member of congress was only a part time job!

I was convicted my second semester of college for possessing a small amount of marijuana with the intent to sell it to my peers. I spent four months incarcerated. A few years earlier, when I was 16, I was convicted for burglarizing a house I had never set foot into. I was guilty because I was an unwitting accomplice and told the authorities what had happened. Needless to say, the sum of my experiences on the wrong side of the justice system has been illuminating. The purpose of my post isn’t to rant about the lack of justice in the. Rather, I would like to shed some light on why the notion of a blanket ban on firearm possession by felons is a violation of their constitutional rights, which may safely be restored to them.

The good news is that I got my life together. I graduated university with honors in the field of business and was hired by a large fortune 500 company before ultimately pursuing a career in real estate. I now own a real estate brokerage and a manufactured home dealership. The process for obtaining these licenses took me 5 years while the state contemplated whether or not I was fit to oversee other licensees and ensure the public’s best interest. But, I’m a patient person and at last was allowed operate a brokerage & dealership. With a little extra paperwork, I can meander through most encounters with the government. I have a steady girlfriend and am held in high regard by my peers who are all accomplished professionals. My actions are that of an upstanding citizen.

When Katrina hit, I watched the looting and the complete chaos on erupt. Between Katrina and the attacks on 9-11, I began to realize that it is inevitable that events will take place in our lives for which our government cannot be there for us every time. However, I can be there every time and therefore the ownership of firearms would be a reasonable exercise of one’s 2nd amendment rights. Only, I don’t have them anymore. So should I be predisposed to becoming the victim of a violent crime because of a couple of past convictions dating back over 14 years? I’ve kept my nose clean and even excelled in life. Moreover, had all this not taken place in Kalifornia, but rather another state, I would once again be able to own firearms. So Americans’ Right to Bear Arms doe not seem equally protected under the law.

Though it would be very easy to circumvent the law and possess a firearm, I have chosen to do the right thing. A pardon looks unlikely according to my former gun-rights attorney. I’ve even looked into joining the military as they have expressed the potential for restoring my rights in exchange for service. I’m keeping that option on the table, but at this stage of my life and being the only kin responsible for the care of my 91 year old grandmother, I can’t help but wonder if there isn’t another way… I am currently looking for a solution to my legal issues. What must I do? What challenges must I overcome? Who can help?

Posted by: Flavio | Dec 1, 2008 4:12:52 AM

was there a racist reason the gun control act of 1968 was passed? Do the black panthers ring a bell? What about Drug laws. Was there a racist element in passing those? Its a shame that the war on drugs and denying felons the right to protect themselves can come from laws that have an element of racism to them.

If you don't know what im talking about. The GCA of 1968 was also called the "keep guns from n@ggers act"

Posted by: | Dec 19, 2008 12:06:10 AM

Heres a more poignyant question, if in some states felons do not have the leagle right to say no to a search without a warrant, what exactly are the leagle rights of a felon?

Posted by: Eric Holt | Mar 12, 2009 11:06:45 AM

Scalia is wrong. Felons even those who have committed violent Felonies do get back firearm rights following a State conviction either by operation of State laws or by application. Only Federal Felonies precludes such remedies. This is unequal treatment under under our laws. It's clear now that States finally protect our Civil Rights while Congress "stomps" on them. What a reversal!
I would like to add that it is of a common understanding shared by Constitutional lawyers that Congress has No authority to regulate firearms within a State, not only by virtue of the Second and Amendment but and all the enumerated Amendments which place a heavy restriction on the on what Congress can do.
In fact the Amendments to the Constitution fully render the so-called "Interstate Commerce Clause null and void.

Posted by: Geaorge Alleni | Apr 30, 2009 2:09:56 PM

Hello,
Whatever happened to the movement to restore rights after a sentence has been served? Does anyone know? Interesting post.

Posted by: Tim | May 29, 2009 8:13:58 PM

I am a prior felons that lives in a not-so-good area of town(as most felons do because it is hard to find a job with a record). I have spend many hours researching this issue. I would like to own a firearm to protect my home, but legally I can't and don't. I can't risk the consequences of owning one.

Many years ago I asked my probation officer how I was to defend my home and he said "call the police" or "hide". I told him that the response time from the police in my area was about an hour and he told me "I better hide good then!". He thought it was unfair that we are not allowed to defend ourselves as well.

The whole thing is ridiculous. I made a mistake many years ago in my life and now I am to be a second class citizen my whole life. I am a legal productive citizen involved in politics(I have restored my voting rights) and family life. I am not the person I was a decade ago.

I can't believe people that say they are for gun rights and then say they believe in "restrictions" as a form of infringement that directly contradicts the second amendment, they engage in "double speak" and "double think". We really only possess the rights that the lowest class of citizen in our country does. We set a dangerous trend with we start having classes of citizens in this country.

Just remember that when they can restrict my rights, they set the precedence so they can restrict and will eventually restrict yours.

Posted by: Chris | Jul 24, 2009 1:03:33 PM

I am a legal researcher by occupation, and a felon.

Here is one for you guys. I am preparing to bring suit against the feds for denying my right to firearms. I was convicted of one felony 15 years ago. Ten years ago Ohio granted me a Relief of Disability O.R.C. 2923.14, which states I am "allowed to own and possess firearms as allowed by state and federal law...this does not apply to dangerous ordnance." In my NICS appeal, the feds denied me based on the "unless clause" of 922, stating the the state limited my firearms ownership by not granting dangerous ordnance. According to O.R.C. 2923.11, dangerous ordnance are exactly what the feds require all citizens to apply for with a class 3 form 4. Therefore, the state does not even have the power to grant permission to ownership or possession of dangerous ordnance.

This creates several issues. First, the feds are denying my rights based on the state not granting me rights that THEY say the state does not have the power to grant! Next, the will of the Ohio legislature was to allow me to petition the court to be allowed to own and possess firearms, which I did and was subsequently granted. The feds denial of my rights is a direct defiance of the will of the Ohio legislature.

Also, the Gun Control Act itself is not Constitutional. How does the interstate commerce clause give the feds the right to regulate the use and ownership of the product once the interstate commerce is complete? How about product items that were not shipped interstate but were strictly intrastate? (see Firearms Freedom Act and current Montana challenge).

I am seriously doing this, working close with my attorney, lobbyists, and soveriegnty and firearms groups. If anyone would like to help me in developing defense or whatever, please respond and email me.
theadvocate35@yahoo.com

Posted by: V | Oct 25, 2009 9:02:23 PM

Great post. Keep up the good work!

Posted by: The Armor Clothing Blog | Jan 19, 2010 8:44:53 AM

My book entitled: the Second Amendment: the State, the Felon, the Right to Keep and Bear Arms, can be found at: www.scribd.com. It covers pragmatic experiences about the use and necessity of a firearm and the arbitrary state laws in Ohio and other states that define the soft felon, those that have never gone to prison, as one equal in temper and attitude to that of a murderer, rapist, or burglar. For the most part the soft felon is normally not a recusant. Such behavior should be viewed as socially beneficial to society rather than inimical. Usually unbridled circumstances are the cause of the soft felon's criminal misfortunes. That is, external or perhaps internal forces, or both, beyond his or her immediate control.

All soft felons need to band together to form a coalition for the purpose of the restoration of all civil rights in the USA and the right to keep and bear a handgun in the home for personal protection against unwanted intrusion.

You can also go to www.webcommentary.com and read my commentaries on the subject as well.

Posted by: Wesley McCants | Mar 1, 2010 7:05:07 PM

This is a great article and very interesting.

Posted by: Self Defense products | Jun 4, 2010 4:36:46 PM

Chris, I feel your pain and wish you the best. It's starting to become more and more like a dictatorship rather than a free democracy when the feds are constantly trying to find loopholes in the system to attack our rights to self defense. Instead of concentrating on making laws that work against the criminals of America. They are restricting the law abiding citizens to their right to self defense.

Posted by: Donald the self defense weapons guy | Aug 17, 2010 12:19:15 AM

Ever research "The Black Laws"? Most enlightening on this and several other points of state-created-ability to "lose" rights (as opposed to having privileges withdrawn or withheld). By the way, I am not "Black", just an observer of the ways bad laws become ensconced and worse.

Posted by: Throsso | Aug 17, 2010 12:22:24 PM

"The right to keep and bear arms shall not be infringed."


There is no exception made for "convicted felons" of any stripe.

ALL gun control is unreasonable and UNCONSTITUTIONAL. An unconstitutional statute is null and void. Cowards should protect themselves instead of leaving it to their government ass-wipers.


Felon or not, buy a firearm (no NICS on a private transaction) and learn to use it against ANYONE who would try to harm you. REGARDLESS of the outfit they wear or authority they claim.

Bottom line, it's better to be judged by twelve, than carried by six (and the loved-ones who trust their lives to YOU, would agree).

"It is the duty of all good men to disobey unjust laws."

Posted by: Thoroughly Provoked | Dec 28, 2010 7:06:40 PM

Chris said:

"I would like to own a firearm to protect my home, but legally I can't and don't. I can't risk the consequences of owning one."


Consequences? In prison on your child's birthday, or free at your child's funeral. The choice is yours.

Posted by: Thoroughly Provoked | Dec 28, 2010 7:20:42 PM

If somthing is a rite, no institue can legaly take it away, so if felons dont have a rite to keep and bear arms it is safe to asume that they are no longer "citizens" and therefore are either slaves or non-entities it is in my humble opinion that the second amendment does not say "unless the government doesn't want you to". If an instition or government entity has to give you permission to do something it then becomes a privlidge and the government has placed itself incorectly above you whom should by law be the controller or boss of the government.

Posted by: Eric Holt | Jan 14, 2012 3:05:50 PM

an american-

fyi to all out there- didnt see anyone mention this- the federal definition of "firearm" excludes anything from efore 1898 including 'modern replicas'.

so we have the right to keep and bear arms until 1898, anyway. that's some deadly weaponry, if you think about it.

also see "united states vs simmons"; you might not be as felonious as you thought...

Posted by: john m. | Aug 7, 2012 5:19:47 AM

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