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November 30, 2008

When the pardon power meets the Second Amendment

I helpful reader pointed me to this great Wall Street Journal article comblining two of my favorite legal topics these days: the clemency power and gun rights. The article is headlined "Seeking a Presidential Pardon? Try Praising the Right to Bear Arms -- Five Forgiven by Bush Share a Trait: They Really Missed Their Weapons," and here are excrpts:

On the surface, the list of the 14 people pardoned by the president this week shows few common denominators in terms of time served, geographic location or even type of crime, except that the felonies were non-violent.  But a closer look at some of the newly pardoned shows many of them are church-going, blue-collar workers from rural areas (and ardent Bush supporters) who had little trouble finding jobs after their convictions. There is another common thread: the important role firearms once played in their lives.

President Bush has pardoned fewer people -- 171 -- than any president since World War II, with the exception of his father, who pardoned 74.  Presidents don't discuss their reasons for issuing pardons, with few exceptions.  Nor do they tell petitioners why their wish was granted. The Justice Department's "pardon attorney," who reviews hundreds of petitions a year and recommends candidates to the president, had no comment.

Coincidentally or not, at least seven of the 14 pardoned on Monday are former hunters or shooting enthusiasts.  In interviews, five of them said they wrote in their petitions to the government that a desire to win back the right to bear arms was a chief reason for wanting a pardon....

Convicted felons lose a host of civil rights, including the right to vote, seek political office or bear arms.  A presidential pardon forgives federal crimes and restores basic rights.

Many felons can win back some rights from their states after they complete their punishment.  But the right to possess guns can be restored only by the president, says Margaret Love, a former pardon attorney under the first President Bush and the first term of President Clinton, who pardoned 396, mostly during his second term.

As regular readers know, I consider federal laws making it a serious crime for a non-violent felon to ever posses a gun to be constitutionally suspect in the wake of the Supreme Court's Heller ruling.  Though I am still waiting (impatiently) for lower courts to acknowledge the Second Amendment questions that now surround these broad federal firearm restrictions on gun possession, I am glad to see that President Bush seems willing to use his clemency power to attend to these matters.

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November 30, 2008 at 12:46 PM | Permalink

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All of the speculation about the implications of the "Heller" Supreme Court opinion have made me wonder whether someone might file a Petition for a Writ of Error Coram Nobis on behalf of a man I met in Federal prison at F.C.I. -Manchester, Kentucky. He was a resident of eatern Ky., only a few miles from the prison. He had been convicted of being a felon in possession of a firearm. For those who haven't visited eastern Ky., everyone there has a gun, whether for hunting or personal protection. My friend had shot a burglar, who broke into his house in the middle of the night, about 2 a.m. He was inside his own home, and was protecting his wife and children, as well as himself. The Ky. State Police said that it was a "clean shoot", and declined to arrest the shooter, even though they were aware of his prior felony conviction. The burglar survived, and was prosecuted for his crime. Then, the ATF arressted the shooter, who was convicted of being a felon in possession of a firearm and served his sentence at F.C.I. - Manchester, 23 miles from his home. He was released in 2004 or 2005. Does anyone think he might credibly seek a Writ of Error Coram Nobis, in light of the "Heller" decision?

Posted by: Jim Gormley | Nov 30, 2008 1:59:40 PM

For those who have read my post above, I offer a second case of a man (a native and resident of Harrodsburg, Ky.)was convicted of Federal firearms charges, who might also be a candidate for either a Presidential Pardon or a Writ of Error Coram Nobis, in light of the "Heller" Supreme Court decison. This gentleman was a decorated former U.S. Army sniper, who had served in the invasion of Panama, where he patiently spent hours sitting camoflauged in trees, counter-sniping at Panamanian military snipers. Like many such men he had agreat affinity for guns. Following his honorable discharge from the Army, he returned home to Ky., and obtained an ATF Class "A" Federal firearms dealers license, which permitted him to lawfully possesss and sell guns, including automatic weapons. Needless to say, he had no criminal history, or he couldn't have obtained the firearms license from ATF.
A few years later, his wife began beefing with him, and decided to swear out a (false) domestic violence restraining order in the state Circuit Court, just to get him tossed out of the house for a few weeks. She was unaware that under Federal law, it is illegal to possess firearms while subject to a domestic violence restraining order (even if you have a federal firearms license). Need less to say, their house was full of guns, including automatic weapons. When the Feds arrested her husband, she realized that she had gone too far, so she went back to the Circuit Judge and asked him to vaacate the restraining order "nunc pro tunc", to the day it was issued, based upon the fact that she had lied in the affidavit used to obtain the restraining order. The Judge granted her request, and the restraining order was vacated nunc pro tunc. Nevertheless, the Feds refused to drop the charge against the husband, who was convicted and spent 5 years at F.C.I.-Manchester. Ironically, he wife was prosecuted by the state for perjury (or false swearing) in her Circuit Court affidavit, and received a 2 year sentence. He was released circa 2005, and the couple is still married! I have always thought his case was peculiarlly unjust, in light of his wife's admitted lies, and the fact that he held the required Federal firearms dealer's license. Ceertainly he should apply for a Presidential Pardon, but a Petition for a Writ of Error Coram Nobis might be a good way to test the scope and reach of the "Heller" decision in his sympathetic case.

Posted by: Jim Gormley | Nov 30, 2008 2:33:16 PM

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