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March 9, 2009

The lack of originalist justification for excluding felons from the Second Amendment

I just saw on SSRN this notable article by Carlton Larson about the Supreme Court's work in Heller, titled "Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit."  Here is the abstract:

This Symposium Essay examines the Supreme Court's Second Amendment decision in District of Columbia v. Heller.  Specifically, the Essay examines four exceptions to the right to bear arms that the Court specifically approved: laws disarming felons; laws disarming the mentally ill; laws prohibiting the possession of firearms in sensitive places; and laws regulating the commercial sale of firearms.  The Essay argues that these exceptions cannot be completely justified on originalist grounds, at least under the form of originalism that the Court is likely to employ.  The Essay further argues that the exceptions cannot be justified if strict scrutiny is the applicable standard of scrutiny.  Accordingly, some lesser standard of review of firearms regulation must apply.

This little essay confirms my own suppositions about the absence of sound and compelling originalist justification for categorically precluding all felons (not to mention some misdemeanants) from the protections of the Second Amendment.  Consider these passages from the piece:

[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms....

The absence of an explicit felon exception in the text of the Second Amendment is echoed in state constitutional provisions. Only one state constitutional provision addressing the right to bear arms contains an exception for felons.  This provision, Idaho’s, was enacted in 1978....

In sum, felon disarmament laws significantly post-date both the Second Amendment and the Fourteenth Amendment.  An originalist argument that sought to identify 1791 or 1868 analogues to felon disarmament laws would be quite difficult to make.

Some related Second Amendment posts:

March 9, 2009 at 03:30 PM | Permalink

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The REAL ORIGINAL INTENT behind the Second Amendment:

The Shay's Insurrection, "These the Legislature could not infringe, without bringing upon themselves the detestation of mankind, and the frowns of Heaven", Jan. 12, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/ShaysInsurrection01121787.html

Commonwealth of Massachusetts, "and shall obtain an order for the re-delivery of such arms", Feb. 16, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/CommonwealthOfMass02161787.html

Journals of the Continental Congress, "...impolitic and not to be reconciled with the genius of free Govts...", Feb. 19. 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/ContCongress02191787.html

Letters of Delegates to Congress, "...An Act to disarm and Disfranchise for three years...", Feb. 27th, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/AnActToDisarm02271787.html

Letters of Delegates to Congress, "...this act has created more universal disgust than any other of Government...", March 6, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/IrvineToWilson03061787.html

Journals of the Continental Congress, "That a large body of armed insurgents, did make their appearance...", March 13, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/ContCongress03131787.html

James Madison to Thomas Jefferson, "a great proportion of the offenders chuse rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty", March 19, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/MadisonToJefferson03191787.html

A Proclamation, "and of being again renewed to the arms of their country, and once more enjoying the rights of free citizens of the Commonwealth", June 15, 1787
http://gunshowonthenet.com/2ALEGAL/AProclamation06151787.html

The Debates in the Federal Convention, "...let the citizens of Massachusetts be disarmed. . . . It would be regarded as a system of despotism.", Aug. 23, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/FedDebates08231787.html

James Madison to Thomas Jefferson, "A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights", Oct. 24, 1787
http://gunshowonthenet.com/2ALEGAL/Precedent/MadisonToJefferson10241787.html

"The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted."

- Thomas Jefferson, Nov. 13, 1787 letter to William S. Smith.
http://gunshowonthenet.com/2ALEGAL/Precedent/JeffersonToSmith11131787.html

That's RIGHT people, it was intended to SECURE the God-given, Natural, Inherent and Inalienable Right of those that HAD transgressed the law. ALL 'gun control laws' are REPUGNANT to the U.S. Constitution.

Posted by: Earl D. Quammen | Mar 10, 2009 2:24:44 AM

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