March 4, 2010
Eleventh Circuit rejects Second Amendment right of felon to possess a gun for any purposeThough many circuits have already rejected Second Amendment claims brought by felons prosecuted and sentenced under the federal felon-in-possession criminal statute, the Eleventh Circuit's opinions today in US v. Rozier, No. 08-17061 (11th Cir. Mar. 4, 2010) (available here), has the broadest language in any of these rulings that I can recall. Here are snippets:
One of the major thrusts of the [Heller] Court’s ruling was “the inherent right of self-defense ... central to the Second Amendment right.” Id.at 2817. Rozier argues that his case parallels the facts in Heller, in that his possession of a handgun was in the home and for the purposes of self-defense. For the purposes of this appeal, we accept Rozier’s assertion that he possessed the handgun for self-defense; however, the motive behind Rozier’s possession of the handgun is irrelevant. We find 18 U.S.C. § 922(g)(1) to be constitutional, even if a felon possesses a firearm purely for self-defense....
Prior to taking into account Rozier’s purpose for possessing the handgun, we must determine whether he is qualified to possess a handgun. Rozier’s Second Amendment right to bear arms is not weighed in the same manner as that of a law-abiding citizen, such as the appellant in Heller. While felons do not forfeit their constitutional rights upon being convicted, their status as felons substantially affects the level of protection those rights are accorded...
Thus, statutory restrictions of firearm possession, such as § 922(g)(1), are a constitutional avenue to restrict the Second Amendment right of certain classes of people. Rozier, by virtue of his felony conviction, falls within such a class. Therefore, the fact that Rozier may have possessed the handgun for purposes of self-defense (in his home), is irrelevant.
I cannot think of any other enumerated right in the Bill of Rights which has no application whatsoever to "certain classes of people" who are adult Americans. But, of course, it has been obvious for quite some time that Second Amendment rights are special --- and now after Heller it seems proper to say that what makes the Second Amendment so special is that the rights it affords are available only to those "classes of people" whom judges and Justices decide are special enough to be trusted with the right of self defense in the home.
March 4, 2010 at 02:46 PM | Permalink
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Doug, your comments surprise me. There is a long list of freedoms that ordinary citizens enjoy, but that can be denied (and routinely are denied) to convicted criminals, even after their sentences are completed.
Some of these so-called collateral consequences are terrible policy. I am not so sure that they are unconstitutional.
Posted by: Marc Shepherd | Mar 4, 2010 4:11:56 PM
In response to your query about enumerated rights that don't apply after conviction, can't that very nearly be the case with the freedom from unreasonable searches? I understand that once a probation or parole term is completed that kicks back in but courts seem quite happy to go along with lifetime supervision for some offenders and it won't surprise me if that becomes routine across the board.
I do have problems with these rulings as both a legal and policy matter but I also don't think folks would be in agreement with me as to why. If someone isn't to be trusted to defend themselves they simply shouldn't be free and likely should forfeit their life.
Posted by: Soronel Haetir | Mar 4, 2010 6:28:09 PM
horse puckey! a RIGHT is a RIGHT if your an american citizen not under anykind of court ordered punishment i.e. prison, probation..... you have all the rights' everyone has!
of couse in this nazi country we have now. guess this means all ex felons should start carrying a katana on their belt and be done with it.
maybe the govt would shutup about the occasional little pistol once they save 50,000,000 ex con's with 36 inch swrods on their belts walking down the streets
Posted by: rodsmith3510 | Mar 4, 2010 7:17:03 PM
I wish folks would realize that the felony/misdemeanor dichotomy no longer makes any sense, therefore the charge of possession of firearm by felon no longer makes any sense.
Doug, I'll ask Amanda to email you a brief she wrote in the Whitaker case which we will argue soon in the NC Sup Ct. It involves an ex post facto challenge to the possession of firearm by a felon charge when the def got his citizenship rights back, including the right to get hunting permits and then the legislature amended the law to prohibit possession by all felons of any kind of gun, (except antigues) anywhere at any time. There is a great section in the brief where she talks about misdemeanors like "Going Armed to the Terror of the People" and felonies like littering over 500 pounds. Which of the persons convicted of those crimes would you worry more about having access to firearms??
Posted by: bruce cunningham | Mar 4, 2010 9:04:04 PM
Not for anything, should felons be allowed to carry guns. Do we really want convicted muggers, rapists, bank robbers, and murders carry guns after they leave prisons.
Posted by: Jim | Mar 4, 2010 11:14:59 PM
“After some period of time has passed, the risk of a new criminal event among a population of non-offenders and a population of prior offenders becomes similar. We are struck by the concordance between our results and the new federal statute on background checks for truckers driving hazardous materials. This statute explicitly limits the use of criminal history records to 7 years since the time of conviction.” Thus, after seven years from date of release, there is no difference in risk between an ex-offender and a person who has no criminal record.
Further, once a felon reaches 45 years of age, he usually ages out of criminal activity. Therefore, any ex-felon who has not committed any further crimes since his release and is over the age of 45 is a good candidate for return of his right to bear arms.
Posted by: m | Mar 4, 2010 11:52:40 PM
You have a point, but the statute doesn't specify only violent felonies.
Are Martha Stewart or Bernie Madoff really any more of a threat with a firearm now than they were prior to conviction?
The data suggests otherwise.
Since they can't be trusted to undo all their "tough on crime" BS sentencing escalation, the burden now is on legislators at the state and Federal level to at least - 1: correct the statutes to specify only felonies which actually involved real violence AND 2: reinstate funding for the process to get ones gun rights reinstated at the Federal level (cut off by Congress in 2002).
Posted by: Matthew Carberry | Mar 5, 2010 1:12:43 AM
My favorite quote from a supreme court case is brandeis talking about the people of massachusetts fearing witches and burning women.
Jim's comment above perfectly illustrates that mentality. Of course , we don't want murderers, rapists, robbers and muggers to carry a gun. But litterers?
Posted by: bruce cunningham | Mar 5, 2010 6:16:01 AM
Of course litterers! What, are you crazy!? Given their penchant for throwing stuff all over the place, they might litter the gun somewhere, and then a kid could pick it up. It makes perfect sense to me.
Posted by: Res ipsa | Mar 5, 2010 9:00:38 AM
Keeping America safe from Martha Stewart, that's what it's come to.
The more I see of the hash morons in Congress and citizens like Jim have made of an aspiring constitutional democracy, the more I think about the POW doctor, Maj. Clipton, looking down from the hill as the River Kwai bridge splinters into ruins.
Posted by: John K | Mar 5, 2010 10:23:28 AM
Marc, you mention a "long list of freedoms that ordinary citizens enjoy" that are denied to "convicted criminals even after their sentences are completed." Are any of those "freedoms" you reference enumerated in the Bill of Rights? Ex cons are often permanently denied the right to vote and to hold certain jobs or get certain government benefits, but none of these rights are protected by the Bill of Rights.
I suspect that people would be very troubled if we said that, by virtue of ANY felony, a person no longer EVER has a right to write a book or to worship (1st A) or no longer has a right to due process or to own property (5th A) or no longer can have a lawyer for subsequent criminal proceedings (6th A). But, according to the 11th Cir here, ANY felony make a person forever unable to exercise any rights under the Second Amendment.
Posted by: Doug B. | Mar 5, 2010 10:25:03 AM
Doug, there certainly are convicted criminals who are compelled to submit to post-conviction impromptu warrantless searches.
If a convicted felon is found by the probation department to have violated the terms of his post-release supervision, he can be returned to prison on a preponderance of the evidence, without the protection of the Bill of Rights guarantees that the rest of us enjoy.
There are two examples for you.
Posted by: Marc Shepherd | Mar 5, 2010 11:12:33 AM
Marc, your examples both involve components of the convicts' original sentence. Do you think a legislature could constitutionally declare that ALL felons forever lose ALL reasonable expectations of privacy FOREVER and therefore can NEVER raise a Fourth Amendment challenge to any future invasion of their privacy the rest of their lives? Or, to put an even finer point on it, do you think a legislature could require all felons FOREVER have to keep a webcam on them at all times (in their home and everywhere they go) so that all their future activities can be monitored and because we they no longer have ANY Fourth Amendment protection for ANY purposes?
Similarly, Marc, do you think we would tolerate a legislative rule that declared that, once convicted of any single felony, ALL future criminal charges for the rest of his/her life should be tried on a preponderance standard? Or, better still, if we are saying due process no longer protects the felon, I guess the rule could be once convicted of a felony, a person can FOREVER be sent back to prison based on a "peppercorn" or evidence or perhaps even based just on the whims of state officials.
Your examples, Marc, are examples of the reduced Bill of Rights protections of convicts WHILE STILL SUBJECT to the terms of their original sentence. No doubt, courts can -- and many have -- ordered dispossession of guns (and computers and cars and lots of other potentially dangerous stuff) as part of the formal terms of an original sentence. Similarly, prisoners have virtually no Fourth Amendment rights in a prison cell. But, again, these realities are not directly comparable to hat the Eleventh Circuit is saying here. It is saying that EVERY FELON (including Martha Stewart and Scooter Libby and Mike Milken) can be FOREVER (from the moment of conviction until death) denied ANY AND ALL RIGHTS under the Second Amendment. And my main point is that I know of no other enumerated right in the Bill of Rights that all felons forever lose. The examples you give are of rights that get watered-down during the period the convict is still subject to the terms of his original sentence.
I will not be surprised if the Supreme Court eventually adopts the Eleventh Circuit's view of the limits of the Second Amendment, but that would provide just proof of my post point --- that the Second Amendment is a special right only for special people.
Is my point now clear? I continue to urge you and others to suggest these kinds of example, because it is possible that there are some rights that are forever barred from some/all felons (the right to vote is close, though it is not an enumerated right in the Bill of Rights).
Posted by: Doug B. | Mar 5, 2010 11:52:15 AM
i agree doug it's not been that long ago that when a person left prison in the west they they got back everything in their posession from the prison INCLUDING their guns!
sorry a RIGHT is a RIGHT! if it can removed it's NOT A RIGHT it's a privilage!
Posted by: rodsmith3510 | Mar 5, 2010 1:38:59 PM
Doug - where I part ways with your argument is that you're viewing the proscription on a felon's right to bear arms as *distinct* from a felon's original sentence. But when Congress (or states) pass laws providing that those who commit felonies can no longer possess guns as a consequence of certain criminal convictions, it seems to me that those consequences become part and parcel of a felon's sentence. Leaving any ex post facto issues aside regarding 922(g), a felon (or someone who commits a misdemeanor) who commits a crime today has fair notice that he faces a sentence of X years and the loss of his rights to vote, hold a firearm, etc. as a condition of his criminal conviction. And as you note, its clear that the government can impose liabilities on a felon's constitutional rights as part of his sentence. Indeed, there's no question that the government could impose a lifetime probation requirement on certain classes of felons that required them to submit to drug tests, etc. So, unless there's some other independent limitation (cruel and unusual punishment, etc.), why isn't it legitimate when the government makes the loss of gun rights a consequence for a felony?
Posted by: Mark | Mar 5, 2010 3:33:05 PM
“I suspect that people would be very troubled if we said that, by virtue of ANY felony, a person no longer EVER has a right to write a book or to worship (1st A) or no longer has a right to due process or to own property (5th A) or no longer can have a lawyer for subsequent criminal proceedings (6th A). But, according to the 11th Cir here, ANY felony make a person forever unable to exercise any rights under the Second Amendment.”
The professor is right on point and while he uses the above quote as a “what if” the cold hard facts are that it is almost that bad now in many areas, especially jobs. There are those who decry the high rate of recidivism yet deny a felon, any felon, job opportunities simply for that reason alone and the federal government is one of the worst offenders. Witness the recent denial of census jobs to anyone with a felony conviction or that a felon cannot work on a military base even as the lowest paid subcontractor. The biggest contributors to the “kick ‘em while they are down” mentality are those lightweights like “Jim” who can’t tell the difference between Charles Manson or Maurice Clemmons and Martha Stewart or NY Yankees owner George Steinbrenner. To those who have that attitude and think that they are being tough on crime I say no, not tough on crime they are being dumb on crime or probably more likely simply blinded to reality by their own self-righteousness.
That is why so many are supporters of H.R. 1529 the "Second Chance for Ex-Offenders Act of 2009". While the legislation does not restore Second Amendment rights, it should, it does allow the first time non-violent felon an opportunity to APPLY, for expunction of his/her criminal record. I emphasized apply so as to deflect those who mistakenly think that the bill is a free ride. It is nothing of the sort. It grants nothing but an opportunity.
Posted by: T Kinney | Mar 5, 2010 4:00:15 PM
It is an interesting and useful question whether a state can, going forward, make permanent disarming a part of every felony sentence. But, again, I wonder if we would accept permanent loss of ALL 1st Amendment or ALL 4th Amendment or ALL 5th Amendment protections on the basis of any all all felonies for the duration of a felon's life as a part of every sentence.
Again, my point is not that we could not (nor that SCOTUS will not) construe the 2d Amendment this way. But it does make the 2d Amendment an odd duck among the Bill of Rights and suggests that it is really not a right as important or as meaningful as other Bill of Rights protections.
Posted by: Doug B. | Mar 5, 2010 8:09:36 PM
that is true mart but those conditons apply ONLY during the sentence. Once that sentence is served they are AMERICAN CITIZENS just like EVERY OTHER AMERICAN CITIZEN that's the problem we have now. we are creating a 2nd and 3rd class of citizens and it will DESTROY US.
Posted by: rodsmith | Mar 7, 2010 2:46:09 PM
I was looking for information on a felons right to vote, and happened on this site in a google search. I am a convicted felon. My conviction is from 1991, and was a non-violent crime. I was 19 at the time. I now have a family which includes two sons. If they wanted to own a gun I would not be able to buy it, or even allow it to be kept in my home. My view is that violent felony convictions should result in stiffer restrictions for firearms possession, but for non-violent convictions there should be some sort of good behavior clause or the like. maybe five or ten years after serving your sentence rights would be restored. As of right now the process to restoration of rights is lengthy from what I understand.I agree completely that rapists, murders and the like should not be able to own guns simply by the nature of their crime. Common sense would say that these people if given the opportunity may commit the same offence again.
Posted by: T. Spory | Mar 13, 2010 9:29:02 PM
First of all, in all this talk about felons and guns, the fact is being left out that America is suppose to be a Constitutional Republic....the Rule of Law. In a constitutional republic, even though a person is a felon, they are still a human being with God given natural rights...and a right to a trial by a jury of his peers. To deny a felon of their natural rights is to deny they are human...which is exactly what the federal courts are doing. They are denying felons of their right to a fair trial. For example, as in my case. I got out of prison in 1998, started my own business, bought a home, then was getting burglarized, and my house got shot up. This was happening to my neighbors as well. Thus I barrowed a gun from one of my neighbors..yes, it became an issue with the feds, they unconstitutionally charged me with interstate commerence(see www.firearmsfreedomact.com) The feds would not allow me to submit my police reports into evidence for a jury of my peers to see, of which the police reports would have clearly justified why I had a gun. No jury in the worl would have convicted me. this is not a Constitutional Republic, the rule of Law. This was fascism, the Rule of Man. The only justice they offered me from a life sentence was to be an informant for them. This was not justice...this was tyranny. The same was done in Nazi germany. PBS has done a documentry on it called "SNITCH". Furthermore, these federal gun laws are not constitutional. To charge a felon the feds must first get around the Tenth Amendment. In doing this they first charge you with Interstate Commerence so they can claim juridiction over the felon. ...all of which is unconstitutional as Hell, and a clear violation of our Republic. That why "SEVEN" states have passed state laws banning/nullifying the feds unconstitution use of the interstate commerence cluase to regulate firearms. (www.firearmsfreedomact.com) What the feds are doing to felons is collective punishment..just like what Hitler did to the Jews. Collective punishment was outlawed..but not here in America (freedom to fascism.com)Felons with guns should be judged on a case by case bases...and where they can present evidence in their defence to a jury of their peers. And for those who think oterwise...the bible teaches us the in the eyes of God none of us are rightous...we are all filthy as unclean rags. Only through Jesus Christ our Savior are we to be saved.
Posted by: Jim Hunsucker | May 16, 2010 12:04:34 AM
And speeking of recidivism rates. there is a prison called "INNERCHANGE" that is run by the church and as a proven track record of bringing recidivism rates from a tipical 75% to 4% and 5% with hardened criminals. The churches work the offenders back into the community (restoritive justice) to be law abiding productive citizens. This is without armed guards, or all the hightech expensive security. The fact of the matter is, prison have become hugh economic boosters. Alot of people profit off of prisons...its infact slavery in the 20th century.There are those who want certain human being to have no rights , and to have complete control over ther lives. Power corrupts, absolut power corrupts absolutely,. Thats exactly what kind of raw power the feds now have over us.Just like with the health care issue. The people didnt want it, so the feds said it was a matter of interstate commerence and have shoved it down our throat. You people better wake up to the fed and the interstate commerence clause, cause they are using it to take over everyone and everything....alll of which is why our founders gave us the Tenth amendment in the first place. Further more, the feds dont care about us and our rights....just look at the salery they make. U wanna get rich, go work for the feds. Go get a government job.
Posted by: Jim Hunsucker | May 16, 2010 12:18:53 AM
The Question is, how long after a felony conviction does a convected felon become a law abiding citizen? After other convictions of a penal and /or misdemeanorconvictions a citizen has a time frame as to become a law abiding citizen again. Under the Clinton administration funding was discontinued for any filing with the ATF for the disability clause and now appears the felony conviction is permanent and not a factor of correction to regain citizenship. How does the second amemndement protect these american citizens?
Posted by: WAH | Jul 29, 2010 8:08:24 PM
The Question is, how long after a felony conviction does a convicted felon become a law abiding citizen? After other convictions of a penal and /or misdemeanor convictions a citizen has a time frame as to become a law abiding citizen again. Under the Clinton administration funding was discontinued for any filing with the ATF for the disability clause and now appears the felony conviction is permanent and not a factor of correction to regain citizenship. How does the second amemndement protect these american citizens?
Posted by: WAH | Jul 29, 2010 8:11:41 PM
I am a student as well as an ex-offender (felon) and to hear people talk with the fears of an illiterate, unaware and disconnected fools. Its true...we do not want the wrong type of felons (or people) carrying any type of weapons, but the fact of the matter is; most people that's "felon's" are nothing more than people who got caught having or doing something that most people that hold high ranking position did (or used) when they were younger. Just remember...the word "felon" applies to anyone that got caught, whether it was for DUI, a bag a weed, a bag a cocaine or getting into a fight in your neighborhood. You people tend to concentrate on the more violet felons (but they are the few) instead of acknowledging that everyday most of y'all commit felons everyday, y'all just never got caught. Now tell me, "are y'all bad people?", "would you try to tell that story to the judge if you were to ever get caught?". Before you "people" start judging find out "what" a felon really is and ask yourself "are you one".
Posted by: Daniel Chappell | Sep 19, 2010 10:55:44 AM
not only are felons denied thier second amendment their eight amendment is being denied excessive fine and penalities dening citizen all his/her rights is excessive penalities .the second clearly state the individual right to own and possess firearms shall not be abridged .14 amendment states a citizens rights can not be taken away they are inallienable .
Posted by: damon | Jan 10, 2011 9:38:05 PM
not only are felons denied their second anmendmet rights they are being denied their 8th amnedment right excessive fines and penalities dening a citizen all their rights after they payed their debt to society is excessive ! the 14 amendment states the right are guarantee and inallienable .the second amendment states these rights can not be abridged so who is the criminal / the people dening the citizens these rights guarantee by the constitution and the bill of rights Concerned citizen !
Posted by: damon | Jan 10, 2011 9:44:33 PM
in some states they restore only partcial rights back every one is restored except the the right to possess a firearm guess these half citizens should only be taxed by half this is cruel and excessive dening a citizen of all their rights as a citizen ,some states you cant hold certain jobs most jobs except a labor job even if they obtain the education needed . federal law states that blackpowder and antigue guns are not firearms .
Posted by: damon | Jan 10, 2011 9:58:34 PM
im a felon and have been charged with felony possession of firearms for 2 legallly owned guns belonging to my wife one 20 guage shotgun and the other a deer rifle 7mm i think one wasin possession of a neighbor she loaned it to him for hunting cause he couldnt afford a new gun and his old one was broken i was giving him a ride home that night and got pulled over by a local mbn officer and told him there was a gun on the back seat and the neighbor said it was in his possession i got told they were taking the gun and that i needed to take them and show them were the other gun was and that i needed to come in and meet with them in the morning long story short they wanted me to help them find drug dealers arround our area or they would charge me i dont do drugs or have any convictions for drugs and dont know of anyone arround me that has any thing to do with drugs for a fact so i said i cant help you call my lawyer and they stuck me in a cell for three days with no bond my conviction was 12 years prior and had no violent crime or drug charges only thing since has been a few speeding tickets yep i like driving a little fast sorry but anyway thats what they hold it over you for so they have a reason to hold you for something
Posted by: chris | Jan 13, 2011 5:55:17 AM
as far as the rest of our rights go they only exist on paper most of my friends and family are not educated and they have better paying jobs than me and im ase certified mechanic only way i was able to get a job was not tell i was convicted and then when they find out i would be fired anyway longest job ive had was a minimum wage bouncer job and they didnt care they just thought my size was right and i looked the part the rest of my jobs have lasted a max of 6 months i did my crime 12 years ago and am still paying for it now my neighbors found out i was a convicted felon and they made it a point to get me out of the neighborhood did i mention the judge had to rcuse herself from those cases witch were found not guilty and the great mbn officer who has the current charges on me now are neighbors well formerly now ive been forced to move from a home im paying 1300 a month for and purchased new property with my camper as a home and now all the police harrassment has stopped for now give it time ittll start back im not as far away as they want me and the officer has told me that already but yeah convicted felons have rights the right to stay away from the socioty in a whole and live a hermits life on minimum wage believe what you want but i dont think it will ever change
Posted by: chris | Jan 13, 2011 6:28:17 AM
People (WE) all make some sort of "BAD CHOICES" in life.Yes including myself,Convicted of possesion with the intent to distribute Cocaine..No weapons at all not a violent person.I did my time in Prison and completed Probation without any conflicts.I am an avid outdoors man,and love to hunt..Why if I have "PAID MY DEBT TO SOCIETY" and now getting voter registrations in the mail can't I legally own/posses a fire arm? To me thats like six in one hand and a half dozen in the other...It's (B.s.rules)like that,that make people ANGRY and become "Out laws" and to me if the Government wants me to vote GIVE ME BACK "ALL" OF MY RIGHTS AS A NATURAL BORN CITIZEN....
Posted by: Lorenzo A. | May 4, 2012 4:43:45 PM
As I see it, the Constitution is the supreme law of the land. ANY laws made in direct contravention to the Constitution are void on their face. The Founding Fathers believed every right they amended the Constitution with to be natural rights provided by God, unremovable. Their inclusion of these rights in the Constitution was to serve as a reminder to the People and the government that these rights are sacrosanct, they are off limits. Once a felon has completed his ordered punishments and is released from the custody of the State, he resumes his status as an American citizen, and enjoys all the rights the Constitution protects as such. No amount of lawyer spin or legislative manipulation gives federal law precedence over the Constitution. None. USC 18 922(g)(1) is patently unconstitutional. No, I'm not happy about felons possessing firearms, but I'm not happy about whackjobs doing it either. Both have the right, NOT privilege, RIGHT to do so, and I'll fight to the death to defend it.
Posted by: Rob | Aug 4, 2012 2:29:29 PM