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June 28, 2010

Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession.  The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.

As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip op.at 19 (emphasis in original).  In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause."  Slip op. at 33.  In short, individual gun rights are "fundamental," they help safeguard another "basic right,"  and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees." 

But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising?  Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment?  Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken?   (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications."  Slip op. at 35-36.)

And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'."  Slip op. at 39-40.  But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Some older posts on the Heller and felon gun rights:

June 28, 2010 at 06:31 PM | Permalink

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Comments

I think that its scary that 4 of the Justices does not think it is a basic fundamental right for self defense. I also think if a felon serves their time and has shown beyond a doubt a crime free life style they should be able to apply for 2A rights. We all know that the pardon system is broken in most States so that isn't really an option.

Posted by: Anon | Jun 28, 2010 7:07:38 PM

One exception that comes to mind is state statutes permitting warrantless searches and seizures without probable cause for parolees and probationers. These statutes share the same policy considerations as felon in possession laws, but the permanence of the latter strains the relationship to a degree that warrants more of a justification from the Justices than a mere "Just take our word for it."

Posted by: Stuart | Jun 28, 2010 7:33:00 PM

Doug --

When the Court says it once, it's fair enough, and accurate, to call it dictum. When it says it twice, it is still technically dictum, but the lower courts will regard it just as they would a holding. That's the way it works. Indeed, that's the way it was working BEFORE the Supremes said it the second time today.

The problem with your logic is that it has no stopping point. Under your view, an inmate STILL SERVING a lawful sentence in maximum security should ALSO keep his fundamental American right to bear arms. Indeed, the need for self-defense is about a zillion times higher in max than it is for the man in the street, since the company is, um, a little rougher. The argument for self-defense is accordingly stronger than it was in today's case.

Think any court in the country is going to allow inmates to have a revolver? Even though prison is their home, US v. Conley, 779 F.2d 970 (4th Cir. 1985)(yours truly for the government), and the case for self-defense is genuine?

Ain't gonna happen. The Second Amendment can be as fundamental as fundamental gets, and neither the courts nor anyone else is going to allow persons properly convicted of serious crimes to arm themselves, not in prison and not outside either.

I'm reasonably sure there is a longstanding doctrine that creates a narrow self-defense excpetion to the firearms prohibition when the previously convicted felon is facing an IMMINENT, CONCRETE threat of grave bodily harm or death and no other means of fending it off is available. But that's as far as it goes, and as far as the courts are going to push it.

I have said before, and continue to believe, that persons who can convincingly establish that they represent no threat of violence to others should, notwithstanding a prior conviction, be able to APPLY for a lifting of the firearms disability. But that's it.

I know your side was hoping today's opinion was going to provide a push for all these felons who want to re-arm themselves. Instead, what happened was an explicit re-iteration of the words you hoped would go away.

Your side has won some important stuff this term; Graham comes instantly to mind. But, as they say, you can't win them all. The re-arm felons movement was getting almost nowhere before today, and I exepect the that McDonald is the death knell.

Posted by: Bill Otis | Jun 28, 2010 8:16:06 PM

One thought comes to mind about Louisiana felons. Felons with Louisiana convictions can own firearms if they wait 10 felony free years from the date they complete their sentence. See LRS 14:95.1. Such a felon is not restricted under federal law from owning a firearm. See United States v. Dupaquier 5th circuit court of appeals. So my question is will McDonald lead to Louisiana felons being able to exercise their 2nd ammendment right in states other than Louisiana? As far as I know a felon as described here can only own a gun in Louisiana but can't cross state lines with a gun.

Posted by: Paul | Jun 28, 2010 8:32:06 PM

Paul:

I am guessing your question is whether, based on McDonald, a Louisiana felon who has had his gun rights and other civil rights restored by operation of Lousiana law after 10 years of good behavior, could lawfully possess a weapon in a state other than Louisiana. Under federal law he could. Once all his civil rights and his firearm rights have been restored under state law, we feds no longer consider him disqualified. As to whether he could still be prosecuted in kansas when he went pheasant hunting there based on a more restrictive Kansas law concerning felons in possession of firearms, I think that is a good question, and i do not know for sure that McDonald answers it one way or the other. While he may no longer be a felon for purposes of federal law, he still might be for purposes of individual state laws. Good question.

Posted by: Grotius | Jun 28, 2010 9:45:02 PM

Bill, couple of reponses:

1. I do not represent "a side," though your eagerness to describe legal issues in these terms suggests the law more sport than serious business to you. And I fear it is just that kind of partisan you-lose-I-win attitude that has bastardized serious engagement with serious issue in the criminal justice arena.

2. The legislatively defined lawful punishment for a crime always reduces or eliminates lots of Bill of Rights guarantees: prisoners cannot readily assemble or attend church or access libraries or lawyers or demand warrants and so on because these kinds of "infringements" are a necessary part of prison punishment. So, too, may be loss of the right to self defense with a gun (though I think the prisoner could lawfully punch an attacker in self defense). In short, the terms/requirements of a legislatively prescribed lawful sentence is a logical stopping point.

3. This lawful-sentence logical stopping point might allow states and Congress to work around the Second Amendment by making all felons subject to lifetime probation/supervise release during which time they cannot ever possess a gun. But then at least felons would know that their 2d A rights are being lost at the time of their plea/sentence.

4. It seem you agree that there should (must?) be a "narrow self-defense excpetion to the firearms prohibition" under the Second Amendment. Shouldn't then a former felon (like Martha Stewart or Scooter Libby) be able to have a firearm in her/his house like Dick Heller and Otis McDonald just in case she/he need to have a firearm available when a break-in presents an imminent concrete threat?

5. My goal/hope is not to "re-arm felons," just as I doubt the goal/hope with the Heller and McDonald cases was to "re-arm" DC and Chicago. I just want to see the reality of rights and liberties to live up to all the rhetoric, especially coming from folks on the right who too often seem eager to champion the right and liberties of those you like/trust and then seem eager to sell out the rights and liberties of those you do not like/trust.

Posted by: Doug B. | Jun 28, 2010 10:07:10 PM

Doug --

-- You may not "represent" a side, but your discussions of this issue make it clear that you believe the present federal firearms disability infringes fundamental Second Amendment liberty. Indeed, this has been one of the issues you feature most frequently. I'm sure I'm not the only one who sees you as being on that "side." And to speak of the issue in terms of being on one side or the other is simply to recognize that neither of us comes to this as a tabula rasa.

"...your eagerness to describe legal issues in these terms suggests the law [is] more sport than serious business to you."

Being on one "side" or the other is the routine paradigm in discussions like this, not to mention in cases, which I did as an entirely serious business for 20 or so years, not without success. You're making way to much of my use of the word "side."

Debating one viewpoint versus another claries, rather than bastardizes, this and other issues. I'll bet dollars to doughnut holes that you encourage debate between opposing viewpoints in your classes.

-- "The legislatively defined lawful punishment for a crime always reduces or eliminates lots of Bill of Rights guarantees."

Just so, and that's basically the answer here. Presumably, instead of, say, a ten year prison sentence with no subsequent firearms disability, Congress could create a five year prison sentence with a lifetime (or term of years) disability. If Congress can prescribe X number of years imprisonnment, it can surely, as an alternative, prescribe X number of years of firearms disability. The greater includes the lesser, and that is the underlying reason these post-Heller suits have never gotten off the ground.

-- Yes, I do agree that the courts must allow a narrow self-defense exception to firearms disability, along the lines I described. Just as a prostitute can get raped, an ex-con can get mugged, and it seems to me that he has a Second Amendment right to the TEMPORARY bearing of a firearm during, but only during, the time needed to use it to fend off the attack. But that is a far cry from permanently keeping a Magnum in the glove compartment.

-- Martha Stewart and Sooter Libby should both be able to apply for abolition of their firearms disability, yes. If I were the deciding authority, I would grant it, because the idea that either is a physical danger to others is nuts -- not just unlikely, nuts.

-- Who I "like and trust" has nothing to do with what arguments I advance here, any more than it did in the briefs I wrote. To me, the law is not an exercise in sentiment. It's an exercise in matching consequences to behavior.

Posted by: Bill Otis | Jun 29, 2010 12:29:51 AM

Professor, I have to agree with you on all points in your original article and more so in your response to Mr. Otis.

A couple of things give me pause though. Mr Otis says, "I'm reasonably sure there is a longstanding doctrine that creates a narrow self-defense exception to the firearms prohibition when the previously convicted felon is facing an IMMINENT, CONCRETE threat of grave bodily harm or death and no other means of fending it off is available."

If federal law says, a felon cannot own a firearm, then how then could there possibly be an "exception" to having possession of one to use if there were an "IMMINENT, CONCRETE threat?" That would seem to assume foreknowledge of the threat. If there were foreknowledge then wouldn't it follow that there were "other means" of fending off the threat? Therefore, if someone did possess and use a firearm in "self defense" would he not be prosecuted for said possession because he clearly had possession prior to the manifestation of the threat. I can't imagine a federal prosecutor in today's "get a conviction at any cost, by any means" arena letting an easy one like that get away.

It is also of interest and I am happy to hear Mr. Otis say, "I have said before, and continue to believe, that persons who can convincingly establish that they represent no threat of violence to others should, notwithstanding a prior conviction, be able to APPLY for a lifting of the firearms disability." There is legislation currently pending which many others and I are working very hard to support. Recently introduced by Congressman Steve Cohen of Tennessee, H.R.5492 the "Fresh Start Act", like it's now pretty much abandoned predecessor H.R.1529 the "Second Chance Act of 2009", will provided a path certain first time non-violent ex-offenders, like the most dangerous Martha Stewart, to APPLY for expunction of a federal felony record. However, both of these bills seem to continue to prohibit firearms ownership even though the original sentencing court, in granting the application for expungement, would have deemed the ex-offender worthy of a second chance and as no threat to society. I can't help but wonder, should this legislation become law, if Mr Otis would support removing the firearms exclusion?

Posted by: Thomas Kinney | Jun 29, 2010 12:35:24 AM

Bill Otis,

"Presumably, instead of, say, a ten year prison sentence with no subsequent firearms disability, Congress could create a five year prison sentence with a lifetime (or term of years) disability. If Congress can prescribe X number of years imprisonnment, it can surely, as an alternative, prescribe X number of years of firearms disability. The greater includes the lesser, and that is the underlying reason these post-Heller suits have never gotten off the ground."

Assuming that you believe that the Second Amendment stands equal with other amendments, such as the First, your argument is problematic. Congress could presumably not, for example, prescribe X years of denial of freedom of speech or religion as a punishment.

Further, your suggestion that Prof. Berman's position calls for current inmates to retain the right to presently possess guns is unfounded; the Court has long concluded that the "needs of the penal institution impose limitations on constitutional rights", Jones v. NC Prisoners, 433 U.S. 119 (1977) (dealing with First Amendment freedoms), and there's no reason why the Second Amendment would be different.

Your posts repeatedly fail to address why, if the Second Amendment is indeed equal to other Amendments, it should be unique (or at least nearly unique) in permitting lifelong disenfranchisement of this right. That you would favor a legislative mechanism for re-enfranchisement would not change your position that total disenfranchisement of a fundamental right is constitutionally permissible.

Posted by: Leon S. | Jun 29, 2010 1:35:00 AM

As an example of First Amendment rights being limited, the case of a registered sex offender - after service of his sentence - being excluded from attending church services is about to be litigated.

Posted by: Paul Kurtz | Jun 29, 2010 6:30:41 AM

Leon S. --

"...your suggestion that Prof. Berman's position calls for current inmates to retain the right to presently possess guns is unfounded..."

No it's not. It's the inescapable logical extension of the position, which you seem to share, that Congress cannot engage in a class-wide abrogation of a Constitutional right. I fully agree that no court has bought such a position or is going to, but it remains the logical extension of what I understand Doug to be saying.

"...the Court has long concluded that the "needs of the penal institution impose limitations on constitutional rights", Jones v. NC Prisoners, 433 U.S. 119 (1977) (dealing with First Amendment freedoms), and there's no reason why the Second Amendment would be different."

You seem initially to stress the fundamental and imperative character of Second Amendment rights, but then (correctly) acknowldge that they can indeed be abrogated where there is a practical reason to do so. The only real question, then, is what is a good enough practical reason.

Congress has concluded that there is a practical reason to impose a firearms disability on convicted felons, because, as a class, convicted felons are vastly more likely than the population at large to present a risk of physical violence. That's painting with a broad brush to be sure, but my point is that it's not SO broad a brush that the Court is at all likely to invalidate it.

"Your posts repeatedly fail to address why, if the Second Amendment is indeed equal to other Amendments, it should be unique (or at least nearly unique) in permitting lifelong disenfranchisement of this right."

Because you can't blow someone's head off using freedom of speech but you can using a gun.

"That you would favor a legislative mechanism for re-enfranchisement would not change your position that total disenfranchisement of a fundamental right is constitutionally permissible."

Your problem is not with my posts but with the Court's statement in Heller, repeated in McDonald, that its holding does not disturb the firearms disability on felons.

Somehow I find it difficult to be embarrassed to hold a postion on this identical to that of ALL NINE JUSTICES. The four dissenters embrace gun regulation far more restrictive than the felon disability rule, and the five in the majority went out of their way to say yesterday, again, that their view of the Second Amendment does not disturb that rule. Your side does not have a single vote. Are they ALL crazy?

Lastly, I have to note the Left's breathtaking hypocrisy on this subject. For years, the Left was howling for more gun control and claiming that the individual right theory of the Second Amendment was an ideological sham advanced by kooks like Rush Limbaugh. When the Left lost in Heller, this position was dropped down the memory hole in a nanosecond, and replaced with the position that everybody has the Constitutional right to an arsenal, ESPECIALLY those who have a prior felony record. Ordinary, law-abiding people like Mr. Heller and Mr. McDonald are of no interest whatever.

Posted by: Bill Otis | Jun 29, 2010 9:54:03 AM

Thomas Kinney --

The self-defense exception to the felon-in-possession disability is explaind in the Third Circuit's thoughtful and fair-minded opinion in United States v. Alston, with which I agree. Alston is available here, http://caselaw.findlaw.com/us-3rd-circuit/1006631.html.

Posted by: Bill Otis | Jun 29, 2010 10:01:31 AM

Thanks for the dialogue, Bill, which I am eager to continue:

1. You are right that I am happy to take a "side" on particular issues, but I was troubled by the comment that "Your side has won some important stuff this term" because it suggests I represent some constitutional cabal with particular agendas/hopes for SCOTUS. Though this may be how you or ACS or The Federalist Society or some others view constitutional jurisprudence, it does not capture how I approach and assess issues.

2. For some reasons that Leon S. suggests, I am not sure in light of Heller and McDonald that a legislature could authorize lifetime firearm disability for any crime. Do you think DC or Chicago could say lifetime firearm disability is part of the punishment for any traffic offense? How about for any misdemeanor? These are hard questions that I am just trying to figure out in light of what Heller and McDonald say about the constitutional protection of armed self defense via the Second Amendment.

3. In light of your future statements, I wonder whether you think DC or Chicago or Congress might constitutionally pass a criminal law that says "It shall be a crime, punishable for up to 10 years in prison, for a person who might reasonably be a physical danger to others to possess a firearm." As your comments spotlight, the current federal felon-in-possession (FIP)prohibition is an even cruder substantive prohibition on the exercise of gun rights. But it seems you find the FIP law to be just peachy. Is that because you do not fear its misuse by federal prosecutors or because you think being a felon makes one categorically worse for exercise of a fundamental right than being a physical danger to others?

Posted by: Doug B. | Jun 29, 2010 10:08:36 AM

Bill, a couple of follow ups to your Leon follow-up:

1. The point of my main post was that if even the staunchest defenders of broad gun rights readily concede that FIP prohibitions are just fine for "a good enough practical reason" that it seems that the Second Amendment will, in fact, always exist as a the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." Obviously, this is what respondents were arguing in McDonald and what is likely to be the practical upshot of Second Amendment jurisprudce. And yet, Alito's opinion for the Court says the Second Amendment should not be given such marginal treatment. That is the "puzzle" that this post and our discussion is trying to sort out.

2. As you should know, it was actual Chief Justice Warren Burger who in 1990 called the individual rights view of the Second Amendment a "fraud" pushed by the NRA. That's one reason I really enjoy looking at this area of the Constitution because it seems that lots of views have evolved a lot in a few short decades.

3. I do not know a single person on the Left claiming that "everybody has the Constitutional right to an arsenal." Can you point to anyone --- on the left, right or anywhere else --- making this claim? As the briefing and votes in McDonald show, it seems that those on the Left on and around SCOTUS are still arguing against Heller. And it seems that the Left has been busy trying to find ways to limit the Second Amendment right in DC since Heller was decided. I REALLY want to know how you come to the peculiar conclusion that the Left's post-Heller position is "that everybody has the Constitutional right to an arsenal."

Posted by: Doug B. | Jun 29, 2010 10:29:57 AM

I think the cases that will shed light on the boundaries of this decision will come overwhelmingly from state court prosecutions. For example, in Michigan, it's a two-year felony, with a mandatory, determinate, and consecutive, sentence, to use a firearm in the commission of another felony. I think that will survive. After all, there's a difference between an armed robbery committed with a handgun, and one committed with a finger in a coat pocket, to LOOK like a hangun. It's a five-year felony for a convicted felon to possess a firearm until the right to do so has been restored, which cannot happen for at least an additional five years after release from prison or probation. Even then, one can never get the right to possess a handgun back--only rifles and shotguns. I think that cannot stand, at least in prosecutions for posession of either a long gun or handgun in the home. It's a crime to carry a concealed handgun without a license. If the defendant is carrying the gun for plausible self-defense--taking money to the bank's night-depository, for example, that will have trouble surviving. Posession of a gun by a drunk will probably survive. After all, it's OK to drive a car, but it's not OK to drive while drunk. These are the kinds of cases and issues that I think will keep the state courts busy for years, with the need for intervention by the U. S. Supreme Court in many cases over the next 10-20 years on these issues.

Posted by: Greg Jones | Jun 29, 2010 10:48:54 AM

Doug --

Let me try to cut to the chase in this post, reserving the opportunity to elaborate later.

The bottom line for me is that the Congressional decision to impose firearms disabilities on those with a felony record is, as you put it, crude, but good enough to pass muster, which the SCOTUS has all but said. Those like Stewart and Libby who pose no threat of physical violence should be able to petition for relief, and if it were up to me they would get it.

There is a line between not-so-serious crimes (misdemeanors) and serious ones (felonies). Like every line the law draws, one can make arguments at the margin about its fairness and prudence. But by-and-large, felonies involve a criminal turn of mind more worrisome than what we see in misdemeanors.

You have what in my view is a pretty balanced way of assessing issues, but after assessing them you DO take sides, as do I. It's clear that you think the FIP disability is too broadbrush, and that it infringes what the Court has now declared to be a fundamental Constitutional right. I agree that present law is broadbrush, but not to the extent that there is any realistic chance the disabilites bar could be or is going to be successfully challenged. As I say, and you do not dispute, all nine votes appear to be going my way on this.

There are two other things that get under my skin here. One is the repetition of the refrain in the ideological defense bar that it's all the system's fault. Apparently the thought never comes to mind that there exists the option of NOT COMMITTING A FELONY TO START WITH. This is the option chosen by the huge majority of the population of all races. If you do commit a felony, life is going to be harder, no doubt about it. This is not the Supreme Court's fault. Maybe people should take more responsibility for the own lives and decisions and spend less time complaining.

The second annoying thing that runs through the debate is the Left's hypocrisy. It can't be pinned on Warren Burger. The gun control movement is overwhelmingly a creature of the Left, not the Right. The Left spent years ridiculing the individual rights position as the pet of wahoos and troglodytes. Now they're swooning about how precious this previously non-existent right is -- precious for people with felony records, anyway. But for others, the indifference of the Left would, like oil, fill the Gulf of Mexico.

Gotta go for now.

Posted by: Bill Otis | Jun 29, 2010 11:10:48 AM

Bill, I don't think anyone disputes that "if you do commit a felony, life is going to be harder, no doubt about it." At issue is what constitutional limits there are on HOW hard your life can be made by a legislature. (There is also the policy issue of whether it is sound to make post-release life for felons extra hard if we do not want them to recidivate).

I personally believe it would (or should) be unconstitutional for Congress to declare that any and every felon, at risk of federal criminal prosecution, can NEVER write an op-ed or go to church (1st A) or object to searches (4th A) or have private property rights (5th A) or hire a lawyer (6th A) or get married or have kids (14th A). I also think some of these prohibitions may be very bad policy, though perhaps some could be good policy to get people like Martha Stewart and Scooter Libby to take more responsibility for their lives.

But apparently you and others (including all the current Justices?) see the 2d A differently --- you suggest it is good policy AND constitutional for Congress to categorically prohibit any and every felon, at risk of criminal prosecution, from ever possessing a gun. That may be how the jurisprudence shakes out, but this would mean, despite Justice Alito's assertion to the contrary, that the Second Amendment IS "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees."

As for you complaint about "the Left's hypocrisy," I hope you will find time to give me examples of any prominent person on the Left who is "swooning about how precious" Second Amendment rights are. Candidly, I wish more folks on the Left, especially after Heller, would live up to their purported interest in liberty and constitutional rights by showing a lot more respect for gun rights.

But you seem to see lots of examples of persons on the Left now saying "that everybody has the Constitutional right to an arsenal" and/or now "swooning about how precious" gun rights are. PLEASE, PLEASE provide some references/examples, because I keep looking and hoping to find folks on the modern established/traditional Left making these kinds of claims.

Posted by: Doug B. | Jun 29, 2010 12:03:20 PM

I'll play Bill's game. I'm on the left and I generally, pre-Heller, would have been in favor of fairly strict gun control regulation for most of the reasons those on The Left favor them. I am even more in favor of the Constitution, however. The Court has rules twice now that the 2nd Amendment is a fundamental right. If so, the Court should act like it. I am sick of fundamental rights being watered down by so-called necessity. If we have rights and they are fundamental to our functioning as a free society, then we should bite the bullet (so to speak) and be willing to enforce those rights. So if the 2nd A is a fundamental right, infringements upon it should be subject to strict scrutiny and narrow tailoring. And we shouldn't need legislation to allow it. Enforcement of the right should require the courts to impose the proper degree of scrutiny on all infringements of the fundamental right.

My insistance on enforcing the right comes not from my love of the second amendment or the way the court has interpreted it, but from my love of fundamental rights and the way this and previous courts have watered down the enforcement of those rights through the guise of necessity. (Well, gee, we would really like to enforce your right not to be illegally searched, but you know you really were guilty and meth is really bad, so I guess you really don't deserve to have 4th A rights to begin with.)

Posted by: Ala JD | Jun 29, 2010 1:12:47 PM

Also, don't forget that permanent felon disenfranchisement is also spouse of felon permanent disenfranchisement. If a felon is forever prevented from using a firearm in self defense (a fundamental right in this country), so to is his/her spouse. The couple living in joint tenancy of their home would both be in constructive possession of everything in that home, including the firearm which the non-felon spouse has the fundamental right to keep and bear. Since the existance of the firearm inside the home would immediately trigger an ICE (and probably state law) violation, I wonder if the spouse could then be charged with aiding and abetting? Ahh, the law school exam questions are endless!

Of course, the felon I'm picturing here is the guy that gets busted shoplifting a $500 coat or is a second time found in possession of a joint. (Both felonies in Alabama.)

Posted by: Ala JD | Jun 29, 2010 1:33:26 PM

i agree a RIGHT is a RIGHT PERIOD! if your not under a LEGAL court sentence you have the SAME rights as ANY OTHER AMERICAN. Failure to grant those means that this country has FAILED and like one of our presidents has said it needs to be "discarded on the trashbin of history!"

which is just what's going to happen if our govt keeps acting like a bunch of idiots.

Posted by: rodsmith | Jun 29, 2010 2:08:16 PM

Non-violent felon here. I've been following this issue for some time now and I'd just like to make the point that the simple fact that I'm concerned about the legal implications of gun ownership prove that gun laws don't work. The only people gun laws prevent from possessing guns are those who don't want to break any (more) laws.

Posted by: SonOfLiberty | Jun 29, 2010 2:15:58 PM

Doug,

For what it's worth, I believe a legislature could mandate that permanent waiver of 4th amendment rights be made part of any plea bargain offered by the jurisdiction. By going with a lifetime supervised release or even light probation model a legislature could do the same with any convict. And by going that route the state could even force waiver of jury trial rights because it would then be a revocation hearing based on the original offense not the new conduct. Note that I am not saying that doing so would be a good idea, only that the choice would be available.

I have to agree with Bill here, the current federal law is not good policy but it is not so grossly disproportionate as to be unconstitutional.

I also don't see any court anywhere in the country willing to enforce a robust second amendment when it comes to non-criminals so I certainly hope none develops that provides robust protection for criminals.

Posted by: Soronel Haetir | Jun 29, 2010 3:11:36 PM

Goodness, Unfortunately there is the perception that Constitutional Rights do not exist until Court tells us what they are - or at least what they mean. This does make it difficult to avoid breaking the law.

Posted by: beth | Jun 29, 2010 3:51:28 PM

Ala JD --

"I am sick of fundamental rights being watered down by so-called necessity."

Then I fear you'll be sick for a long time. Fire in a crowded theater and all that.

Posted by: Bill Otis | Jun 29, 2010 5:11:41 PM

Ala JD --

"Of course, the felon I'm picturing here is the guy that gets busted shoplifting a $500 coat or is a second time found in possession of a joint. (Both felonies in Alabama.)"

Have you considered the possibility that people should refrain from stealing? And also refrain from repeat involvement with illegal drugs?

Still, at least you don't trot out Martha Stewart and Scooter Libby again, as if they were even slightly representative of convicted felons.

Here's a more representative group: The crack or meth dealer protecting his turf with violence and/or the threat thereof; the guy who sticks a revolver through your SUV window in the course of carjacking it; the fellow who knocks over the convenience store at 3 a.m. with the assistance of a Magnum. Let's quit with the shake-and-jive about who felons really are. I was a litigating lawyer in federal court for about 20 years. I know who they are.

The defense bar can do all the complaining it wants. No matter how broadly you read the Second Amendment, such people should not be, and are not going to be, re-armed. There is not a single vote on the SCOTUS, and I suspect not on the Circuit courts either, to end the permanent ban on firearms for this crowd.

Nor, while we're at it, are many people going to be taken in by all this talk of self defense. The reason felons of the representative kind I have just described want their guns back is not for defense. It's for offense. Time to admit it.

Posted by: Bill Otis | Jun 29, 2010 5:27:28 PM

beth --

Actually, it's easy to avoid breaking the law: Lead an honest, peaceable life with respect for the rules and the rights and well-being of others, and avoid schemes that promise the quick, easy buck.

Not a whole lot more to it than that.

Posted by: Bill Otis | Jun 29, 2010 5:31:55 PM

Bill, you are correct. Not breaking the law is the best way to live. I don't break the law knowingly, but I know I have. There are lots of laws I know nothing about. That aside, I want to talk about felons and gun laws.

Violent criminals don't care about the law. If they don't care about shooting someone, they will not care about purchasing a weapon from an unlicensed dealer, or even from someone who is just selling a personal weapon. The only way to keep guns out of the hands of felons is to eliminate guns. How much law can we tolerate?

I don't see how this can be button holed as a liberal or conservative position. I think it is just realistic. People who are felons and still want a gun will have one. If we wern't chasing our tails about every kind of social behavior, we would perhaps be better at protecting ourselves from violent crime.

Posted by: beth | Jun 29, 2010 6:54:10 PM

The only way to keep guns out of the hands of felons is to eliminate guns.

---

Not so, you can execute the felons instead of releasing them back into society.

Posted by: Soronel Haetir | Jun 29, 2010 8:03:52 PM

I guess I do not see this as a liberal or conservative issue either. Interestingly, the congress specifically exempted from the felon in possession law persons convicted of anti-trust laws and similar economic regulation laws. Where I live, in the West, gun possession is usually THE thing federal judges talk to defendants about when they are pleading guilty, not because they will lose the right to use handguns in gang shhotouts, but rather because they will not any longer be able to hunt elk with a firearm.

Purely on the legalities, I think Bill is probably right. Regardless of how we describe Second amendment rights in terms of being fundamental, etc, and regardless of how irrelevant a firearm disqualification is, in terms of public safety, when applied to a tax cheat or a common, ordinary defrauder, the fact remains that, very probably, none of that will matter in terms of future efforts to try to vindicate the "fundamental nature" of the Second amendment on behalf of non-violent felons who genuinely pose no risk of danger to the public in terms of future violence. The Court is, as we all know, not simply a totally neutral arbiter applying neutral principles of law to cases brought before it. It is also, for better or worse, a political institution that is always (or mostly always) first and foremost looking out to preseve its own legitimacy. That may be good, that may not be good, but i think it to be true. Because of that, I do not any time soon expect it to explore the nuances of how, as a matter of principle, the broad felon disqualification statutes fare where the specific felon before them......say, a female bank teller convicted of dipping unlawfully into the till.....wants to exercise her Second Amendment rights and possess a firearm. We are just not going to see that case decided on the basis of McDonald and Heller and the right both of them declare to be fundamental.

Posted by: Grotius | Jun 29, 2010 8:16:44 PM

how can a total forfeiture of a fundamental right based on conviction, even after release from prison, be squared with the settled precedent holding that prisoners retain fundamental rights while in prison, subject to reasonable regulations for legitimate penological interests? It can't. Following the Heller dicta will require overruling a long line of precedent.

- defense attorney

Posted by: pc | Jun 30, 2010 12:20:01 AM

defense attorney --

Then why has the defense push on this fallen so completely flat in the post-Heller litigation? Are the judges all in a conspiracy with DOJ?

Posted by: Bill Otis | Jun 30, 2010 8:07:30 AM

Bill writes: "Apparently the thought never comes to mind that there exists the option of NOT COMMITTING A FELONY TO START WITH. This is the option chosen by the huge majority of the population of all races. If you do commit a felony, life is going to be harder, no doubt about it... Maybe people should take more responsibility for the own lives and decisions and spend less time complaining."

In more than three years of examining low-level white-collar cases I've met any number of "felons" whom I believe were truly astonished to discover (when the FBI showed up) that they'd broken the law -- including some whose purportedly felonious dealings had passed muster with attorneys who'd been overseeing their business practices.

As beth noted, we have a lot of law to deal with in society these days. Most citizens remain unaware of nearly all of it. And much if it so vague, sweeping and inscrutable most citizens wouldn't understand the profound threat it poses to their lives even if they were aware of it.

It's nice work for prosecutors, but it can be hell on ordinary people who fall into its clutches.

Posted by: John K | Jun 30, 2010 12:51:26 PM

i agree completely john i'd also be willing to bet if someone was to put a few detectives on the case they could find a few laws violated by dear odl bill if they REALLY REALLY wanted to find someting. with 100's of thousands of laws on the books now and 1,000's more added every year NOBODY is clean now. EVERYONE is an unconvicted felon. Who just hasn't been caught yet.

Posted by: rodsmith | Jun 30, 2010 1:56:40 PM

rodsmith --

"i agree completely john i'd also be willing to bet if someone was to put a few detectives on the case they could find a few laws violated by dear odl bill if they REALLY REALLY wanted to find someting."

Fine by me. The agents will be welcome. As a matter of fact, they've already been welcomed. If you're an AUSA, as I was, they do a background check, although not, I suspect, the Grade A background check. Later in my career, I held two other jobs with the feds at a higher level. For those, they DO undertake the Grade A background check. If you're doing anything that would embarrass the President on the administration, criminal or merely nasty, believe me, they'll find it.

Here is the list of my felony arrests:____________________.

Here is the list of my misdemeanor arrests:__________________.

I do, however, have four speeding tickets. One was for 19 mph over the limit (on an Interstate); one more mph would have been reckless driving, which in Virginia is a crime rather than an infraction. So I guess I was lucky. (Since I was guilty in all four instances, I pled guilty, by mail, and paid the fine).

Sorry to be such a boring character, but the cat was probably already out of the bag on that.

Here's the skinny on avoiding the cops: Stay away from easy money and quick buck schemes; tell the truth even when it makes you look bad; don't use violence no matter how mad you get; and remember that other people have the same feelings you do and would like to be treated the same way you'd like to be.

It's just not that hard.

Posted by: Bill Otis | Jun 30, 2010 5:46:35 PM

Bill - the defense push hasn't fallen flat, it's barely even started. Appellate law takes time, and it's only since Monday that this was a fundamental right in the states.

Posted by: pc | Jul 1, 2010 12:58:19 AM

pc --

What reason is there to think that the claims in state court will fare any better than have identical claims in federal court over these last two years?

Posted by: Bill Otis | Jul 1, 2010 9:10:45 AM

Hey Bill,

I am still waiting for you to provide A SINGLE EXAMPLE of a person on the Left now saying "that everybody has the Constitutional right to an arsenal" and/or now "swooning about how precious" gun rights are.

I ask again in part because I worry that many on both sides of the aisle --- both right and left --- sometimes make positions of the other side just to justify their dislike/disagreement. (I also worry more generally about your tendency to avoid inconvenient facts/reality.)

Posted by: Doug B. | Jul 1, 2010 9:45:23 AM

Doug --

The example was conveniently provided in the VERY NEXT POST after you made your request. Ala JD | Jun 29, 2010 1:12:47 PM lauched by saying this: "I'll play Bill's game. I'm on the left and I generally, pre-Heller, would have been in favor of fairly strict gun control regulation for most of the reasons those on The Left favor them. I am even more in favor of the Constitution, however. The Court has rules twice now that the 2nd Amendment is a fundamental right. If so, the Court should act like it. I am sick of fundamental rights being watered down by so-called necessity. If we have rights and they are fundamental to our functioning as a free society, then we should bite the bullet (so to speak) and be willing to enforce those rights." It goes on from there.

It's true that Ala JD did not use the exact words, "everybody has the Constitutional right to an arsenal," nor did he in haec verba swoon about how precious gun rights are, but (1) I was not purporting to quote him, or anyone, and (2) given the context of his post, this is EXACTLY what he was saying. I mean, how can we interpret "we should bite the bullet (so to speak) and be willing to enforce those rights" OTHER than as swooning about precious gun rights?

And, as ever, gun rights only for previously convicted felons. People with no felony record can go sit in the corner, from all I am seeing from your other commenters.

Now that I think of it, there was also a comment by gritsforbreakfast many moons ago to the effect that some felon with 11 rifles and pistols in his house may well have had a "self defense" need for them, Texas being Texas. This is of course preposterous for Texas or any place else, as I said at the time, but there is no question that (1) grits in on the Left, and (2) he was speaking up for what any normal person would regard as being -- for one man in one house -- an arsenal.

Now let me ask you a question: Isn't it the case that Martha Stewart and Scooter Libby are grossly unrepresentative of convicted felons, and that the guy who knocks of the convenience store at 3 a.m. or carjacks your SUV by sticking a revolver through the window at your head is much more representative? And that in light of this fact, the song about these people wanting to re-arm for "self-defense" is, by-and-large, hokum, since what they really want is to re-arm for offense, not defense?

Posted by: Bill Otis | Jul 1, 2010 12:16:49 PM

Bill, I agree that Martha Stewart and Scooter Libby are not representative of most felons which is why I am so troubled by a law prohibiting ALL felons from having a right to exercise rights that everyone else is to have. Likewise, you and I are not representative of most people on either the left or right or middle, but I am glad we all (including all felons) need not risk criminal prosecution just for wanting to exercise our First Amendment or Fifth Amendment rights reasonably.

Understand?

Posted by: Doug B. | Jul 1, 2010 6:50:27 PM

Whether they are representative or not is irrelevant. Non-violent felons do exist, and they are lumped in with those who have a proven track-record of violence. Federal law excludes some non-violent felons from the lifetime ban on exerting their second amendment rights by exempting certain specific, white collar crimes but otherwise makes no distinction. If the rationale for the "reasonable restriction" on gun ownership is public safety, how is the public safer by prohibiting individuals with no history of violence from owning a gun?

Posted by: SonOfLiberty | Jul 1, 2010 7:30:12 PM

Doug --

We're actually not all that far apart.

It's a matter of degree. It's plain some felons should not be barred from firearms possession, because no sensible person could think they're dangerous. It's equally plain that other felons should never be allowed anywhere near a gun, because they have shown a penchant for violence.

The question is how to differentiate the one batch from the other, and how the courts, after Heller and McDonald, will allow the legislatures, including Congress, to go about the differentiating.

Existing federal law draws the line at a felony conviction. Like almost any line the law draws, this one is crude, and in light of Heller an McDonald it is going to strike some people as TOO crude and too restrictive. But the legislature is going to be given considerable deference by the courts. This would be true even absent the dicta in the two cases, but will be especially true in light of it. (Indeed the more questionable honest services statute got most of its chesnuts pulled out of the fire by a deferential SCOTUS majority looking to give effect to core Congressional intent).

As you know, I believe in the one-case-at-a-time approach. (This is one reason I oppose no-matter-what abolition of the DP -- it pretermits consideration of any future set of facts). The scheme I would prefer is a presumptive ban on felons in possession, reserving the right of the firearms-disabled felon to petition for relief from the disability upon his showing that he does not pose a physical danger. If he can make the showing, fine, he gets his gun. If he can't, it would be imprudent to allow him to get it.

Given the Heller/McDonald dictum, I doubt this more-lenient-than-present scheme is constitutionally required in the view of the Court as it stands, which certainly appears to be satisfied with the present state of FIP disabilities. But as a policy matter, it's where I come down. For me, it strikes the correct balance between the general right of individuals to have guns and the right of society to prevent dangerous people from arming themselves.

P.S. This is the same balanced approach that will persuade President Pawlenty to appoint me a circuit cat. Why hasn't President Obama called you? Or has he?

Posted by: Bill Otis | Jul 1, 2010 9:20:30 PM

President Pawlenty? Pawleeze!

Posted by: John K | Jul 2, 2010 11:13:34 AM

ahh bill!

"Fine by me. The agents will be welcome. As a matter of fact, they've already been welcomed. If you're an AUSA, as I was, they do a background check, although not, I suspect, the Grade A background check. Later in my career, I held two other jobs with the feds at a higher level. For those, they DO undertake the Grade A background check. If you're doing anything that would embarrass the President on the administration, criminal or merely nasty, believe me, they'll find it."

of cousrse they will but they key is they have to WANT TO GET YOU otherwise they simply ignore it unles it's some major blatnet violent crime. BUT if they want you well you know very well they can take a pimple and turn it into a mountain if they REALLY want to.

Posted by: rodsmith | Jul 2, 2010 8:49:30 PM

John K --

We've got to nominate SOMEBODY. Romney, Huckabee and Palin all have disqualifying flaws. I don't know if it will be Pawlenty, but I'm pretty sure it will not be anyone now regarded as a first-tier candidate. People are starting to look at Gov. Daniels in Indiana and Sen. Thune from South Dakota. I kinda picked Pawlenty out of a hat.

Whoever gets it will have a real good shot. Obama's standing has gone straight downhill from inaugeration day on. The public (independents in particular, according to the polling) understand that he pulled a bait-and-switch: He campaigned as a "post-partisan" but has conducted an utterly partisan Presidency. He has also governed as if he got 63% of the vote instead of 53%. Lastly, he has tried govern a center-right country from the left. Jimmy Carter proved this doesn't work. The only Democrat since FDR to win re-election was Clinton, who governed from the center.

And what good news is going to buoy Obama? The supposed economic recovery is tepid if it exists at all. Job creation is at a standstill. The stock market is losing ground. Government debt has spiraled out of control, vastly worse than Bush's (bad enough) fiscal policies. Taxes are headed up. Obama pushed through a health care plan the country doesn't want and can't afford. And we have, unabated to this day, the oil spill in the Gulf, easily the most gigantic environmental disaster ever. Obama has done zilch about it and the public knows it. (He has, however, gotten in a few rounds of golf).

Things abroad are equally dismal. The war in Afghanistan needs to be won, but Obama has no plan to win it, and Americans don't cotton well to defeat. Absolutely nothing is being done to stop the mullahs from getting the bomb, and Obama looks both weak and foolhardy going for the fourth (or is it the thrirty-fourth) round of feckless "sanctions." Relations with the one democratic country in the Mid-east -- Israel -- have never been worse. The more Obama tries to suck up to dictators, the more contempt they show for him.

The right-track/wrong-track polling is completely in the tank. A Pew poll three months ago (before the oil spill) showed that the percentage trusting the governement to do "the right thing" was 22% -- lower than at any point in the administration of George Bush (or Richard Nixon for that matter).

Obama will still be tough to beat because he has a good persona. He's good looking, tall and fit. He's super good with words, maybe the best I've ever seen. And of course he has the press to cover for him, which it does in grand style.

The country elected Reagan, not because it was sold on him (according to polling at the time, it had significant misgivings about him), but because Jimmy Carter was one piece of bad news after the next. Are you hearing a lot of good news these days? Obama is headed right straight down Carter's path.

So I don't know if it will be President Pawlenty. But, more and more, I have grave doubts that Obama can win a second term.

Posted by: Bill Otis | Jul 3, 2010 12:29:01 AM

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