March 17, 2009
"Why Can’t Martha Stewart Have a Gun?"
The title of this post is the title of a new article by C. Kevin Marshall that will appear the Spring 2009 issue of the Harvard Journal of Law and Public Policy. A helpful reader sent me a copy of the article, perhaps after noticing this post I wrote way back in January 2008 questioning the justification for asserting that Martha Stewart and Scooter Libby and other non-violent felons are completely and forever excluded from the Second Amendment's protection. I have secured permission to post this new article, which starts this way:
In 2004, domestic diva Martha Stewart was convicted of obstruction of justice, making false statements, and two counts of conspiracy in connection with dubious stock transactions. Although sentenced to only five months in jail plus a period of supervised release, she risked a much harsher punishment. Because she was convicted of a crime punishable by more than a year in prison, federal law bans her from having any gun. Her ban is for life, unless the Attorney General lifts the disability — a because Congress regularly bars the Bureau of Alcohol, Tobacco, Firearms, and Explosives from spending any money to review petitions to lift firearms disabilities.
Is the public safer now that Martha Stewart is completely and permanently disarmed? More to the point, how could such a ban be constitutional, now that the Supreme Court, in District of Columbia v. Heller, not only has confirmed that the Second Amendment secures a personal right to keep and bear arms, but also has emphasized its historical tie to the right of self-defense?
Here is how Mr. Marshall concludes his exploration of this interesting and important post-Heller topic:
Research and analysis need to replace dicta and assertions on this topic. Especially after Heller, there is much room for further thinking and discussion. Yet wherever the constitutional line may be, it is difficult to see the justification for the complete lifetime ban for all felons that federal law has imposed only since 1968. And among the various lines that the Second Amendment might draw, it is at least curious how Martha Stewart could merit anyone’s concern.
Some related Second Amendment posts:
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The lack of originalist justification for excluding felons from the Second Amendment
- Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
- Assailing the unjustified Second Amendment limits in Heller
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- What if no lower court judges participate in a "Second Amendment Revolution"
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
- What might 2009 have in store for . . . Second Amendment jurisprudence?
March 17, 2009 at 04:41 PM | Permalink
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