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September 24, 2011

"Should pardoned felons have gun rights?"

41591_37644432732_5613370_n The title of this post is the headline of this front-page article from yesterday's edition of The Tennessean.  Here is how the piece starts:

David Scott Blackwell has repaid his debt to society, by Georgia standards.  He served five years in prison for selling drugs.  He successfully finished his probation.  He was even granted a full pardon by the Georgia Board of Pardons and Paroles, which would allow him to possess a gun in that state.

But should Blackwell, now living in Franklin, be able to own a gun here? Blackwell is suing the state after being denied a gun permit in Tennessee, arguing that the Georgia pardon fully restored his rights — even the right to bear arms.  It’s a battle being played out in other states as well, as lawmakers in places such as Alaska and Oregon have mulled over laws to loosen firearms restrictions on felons who have had some of their rights restored.

It also has brought out unusually vocal support from Second Amendment advocates, who in prior years have been hesitant to support some felons’ rights to possess firearms.  Among those advocates is the Tennessee Firearms Association, which downplays the fact that Blackwell is a convicted felon, instead painting it as a conflict between the constitutional powers of the pardon and Tennessee lawmakers who have written laws to restrict felons’ rights.

This marks the first time in the association’s 16 years that it has filed a brief in any lawsuit.  “Georgia’s pardon system granted him a full pardon, and it specifically says he has the right to purchase and acquire guns,” said John Harris, a Nashville attorney who serves as the volunteer executive director for the Tennessee Firearms Association.  “This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?”

Blackwell failed to convince a Davidson County Chancery Court judge, but has appealed. The Tennessee Court of Appeals recently heard arguments and is considering the case. “The pardon restores constitutional rights — that’s what a pardon does,” said Blackwell’s attorney, David Raybin.  “Therefore, it restores his right to a firearm.  That’s it, in its simplest terms.”

But the state is opposing Blackwell, saying laws passed by the Tennessee legislature prohibiting felons from possessing firearms apply to those whose rights have been restored.  “It is reasonable for the legislature to determine that felony drug offenders, even those who subsequently receive a pardon, are likely to misuse firearms in the future,” wrote the Tennessee Attorney General’s Office.  “This is due to the well-known connection between guns and drugs.”

The newspaper has this accompanying on-line poll asking whether "a pardoned ex-convict who is allowed to own fire arms in Georgia [and] now lives in TN [should] be allowed to own a gun in TN?".   With just under 500 votes cast as of this writing, the vote has YES at 47%, NO at 45%, and a remaining 8% as Undecided.   (I voted YES in part because I suspect a non-violent offender who has secured a pardon is probably less dangerous and less likely to misuse a gun than an average citizen.)

September 24, 2011 at 11:54 AM | Permalink

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Something about full faith and credence?

Posted by: Tim | Sep 25, 2011 4:39:52 AM

So, Tennessee citizens, courts and other governmental offices trust Georgia to properly convict the guy but not to pardon him? He's under no disability in Georgia so how could he possibly have one in Tennessee? It doesn't make sense.

Posted by: Ga Resident | Sep 25, 2011 11:04:11 AM

no

Posted by: Paul A'Barge | Sep 25, 2011 11:11:48 AM

I am a CPA practicing in Georgia. I came to your blog courtesy of Instapundit. If you want to promote your blog, suck to up Dr. Reynolds. On the matter of pardoned felons carrying guns. If a state doesn't believe the felon in question to be trusted with a firearm then it shouldn't pardon said felon. Georgia explicitly believed him to be so trusted and said so. Unless Tennessee has reason to believe otherwise, they have no reason to deny him the right. If they want to restrict his right to carry, then forbid him to possess a firearm on the day of the Georgia-Tennessee football game, in similar fashion to the banning of alcohol on voting days.

Posted by: willis | Sep 25, 2011 11:20:57 AM

This is simple and depends on how you phrase the question. This issue is not about the effect of the Georgia pardon. Pardons do not change facts. The issue is about Tennessee's ability to regulate ownership of firearms under the 2nd Amendment based on conduct or character.

As anyone who has answered character and fitness questions for state bar admission knows, an expungement or even a pardon is a non-factor depending on the question. For instance, assume that you had a juvenile drug charge that was was resolved through a diversion program. You are doing the character and fitness questions for the bar. The question may read: have you ever been arrested? Answer: yes. The answer has to be yes despite the expungement, because expungement changes the physical record, not the facts. Next question, If arrested, have you ever been convicted? Answer in the hypothetical might be that I was allowed to defer my plea and enter a diversion program. At the end of the program, the charges were dropped and the record expunged.

How does this translate to Tennessee and the question of gun ownership and possession under discussion here? Tennessee may ask gun purchasers? Have you ever been arrested for a drug law violation? Tennessee could then follow up, what was the disposition of those charges? The answer in the case under discussion here would be: I was convicted of the charge and later pardoned.

What can Tennessee do with the answer? For the Tennessee legislature, it may be sufficient reason to deny gun ownership that a person was arrested and convicted on a drug charge. That person's status as a felon does not even come into play. The fact that the person was pardoned does not come into play. It is the facts about personal conduct in the person's history that bar gun ownership, not the label "felon." It is identical with the prohibition on gun ownership by people with mental illness or under orders of protection. Neither is a felon. Both, however, have facts in their past that make possession of a firearm risky.

In the Tennessee case you might argue for a different result of the pardoned Georgia felon could say also: "the Georgia courts have since determined that I was arrested without probable cause and that I am actually innocent of the charge." The best argument in Tennessee might be actual innocence, not merely a pardon.

Posted by: Gus | Sep 25, 2011 11:37:36 AM

Allowing the state to judge whether someone is of "good character" in any context is a foolish thing to do. In all cases a convicted anything should retain gun rights and any other other rights, otherwise they aren't rights but privileges granted by the government. Any time a person breaks the law with a gun or a pen or anything else they should be punished for that action but ever allowing the state to deny or infringe on a right makes a mockery of the concept of rights.

Posted by: RC | Sep 25, 2011 11:44:28 AM

"I voted YES in part because I suspect a non-violent offender who has secured a pardon is probably less dangerous and less likely to misuse a gun than an average citizen."

Thank you for your vote of confidence. All 80 million of us are just waiting for a chance to intentionally or accidentally kill someone. You will find that being a member of Mayors against Illegal Guns makes you 4 times more likely to be arrested for a crime then your average gun owner.

Posted by: Average Citizen | Sep 25, 2011 12:22:04 PM

Look either keep them in jail or give them ALL their rights back. You can't have it both ways. Either they have paid for their transgression or not.

Posted by: HSM | Sep 25, 2011 12:24:02 PM

Once the man has paid his dues to society - what gives some politician (Probably a crook himself) to decide what rights the man may have. Who died and made the politician God. Too many of these idiots think they are little tin Gods these days.
Retired Engineer.

Posted by: Zain | Sep 25, 2011 12:46:29 PM

If Tennessee restores the right of gun ownership to its own pardoned felons, then by all means it should recognize pardons from other states and not deny the right to this individual.

However, if Tennessee law doesn't automatically restore gun-ownership rights at pardon -- a policy I'd find hard to justify but certainly within the realm of possibility where politicians are concerned -- then this individual probably should focus on getting the law changed legislatively.

Posted by: McGehee | Sep 25, 2011 1:26:08 PM

Slightly OT, but to earlier comments: Why should the fact of an arrest be a stain on a person's record? A perfectly innocent person can be arrested in cases of mistaken identity, police malfeasance, or any number of mistakes. What makes the fact an arrest occurred a meaningful item?

Posted by: John | Sep 25, 2011 1:43:24 PM

Atricle 4 Section 1 of the United States Constitution says: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Therefore if his right to own and posess a firearm was restored I believe Tennessee has to honor that. If however, you accept Tennessee's premise that a Handgun Carry Permit is a privilege and not a right (similar to a driver's license) then the state can deny the Carry Permit even though Blackwell was pardoned and had his rights restored?

I am a Deputy Sheriff and a Handgun Carry Permit Instructor and I think you have to ask when a person has "paid their debt to society." If the people of one state decide a pardon means that debt if fully paid, how can another state disagree based on Article 4? I don't think it can without rendering the Constitution meaningless. I think the state had to honor the pardon and issue Blackwell a handgun carry permit.

Posted by: Mike V. | Sep 25, 2011 2:23:05 PM

Since the Second Amendment has been acknowledged to protect a fundamental right, and the full faith clause means other states must acknowledge others public documents, if GA issues a handgun permit, then all 50 states must honor it.

Posted by: SDN | Sep 25, 2011 8:04:23 PM

Apart from the death penalty and life imprisonment, should lessor "felons" (say Bill Clinton for example?) be sanctioned in any way for life? Can a person pay their debt to society or not? If not, why not?

Posted by: bill | Sep 25, 2011 8:58:09 PM

I think you have to ask when a person has "paid their debt to society." If the people of one state decide a pardon means that debt if fully paid, how can another state disagree based on Article 4? I don't think it can without rendering the Constitution meaningless.

Posted by: web design Landon | Sep 26, 2011 4:57:21 AM

The article:states, "... which downplays the fact that Blackwell is a convicted felon ..." That's because it ISN'T a fact. He was pardoned, so he's no longer a felon. His conviction is wiped out. That's what pardon means.

Posted by: Jim Nicholson | Sep 26, 2011 8:22:55 AM

This blog, and the attached comments, give me hope. But I have a related question - what about a person who committed a non-violent felony over 20yrs ago, served time but since then has not even received a traffic ticket. This person is not able to legally purchase any type of self defense, much less get a CCW license. Do we have rights or do we have privileges granted by the government?

Posted by: Patricia | Sep 26, 2011 8:33:00 AM

if some one is safe to be let out of prison then thay should be able to have a firearm if thay can not be trusted then why are thay back on the street

Posted by: chopper | Sep 26, 2011 9:15:54 AM

This will be a game-changer for those Duke boys. No more exploding arrows! Hazzard County, watch out!

Posted by: Roscoe P. Coltrane | Sep 26, 2011 11:05:41 AM

Given the history of pardons handed out by notable Democrats, I just can't see returning their Second Amendment rights without additional due process (some sort of court proceeding for the individual).

And this is from me, mister, "everyone should be keeping and bearing guns at all times."

Posted by: luagha | Sep 26, 2011 11:06:34 AM

There are too many felonies, most of which are not related to violent or even malum in se conduct. So I'm against an across-the-board rule.

For purposes of weighing my comment, I am a practicing lawyer, but not in criminal law. I am a real estate lawyer.

Posted by: KenB | Sep 26, 2011 11:12:01 AM

I'm a mathematician working as a computer programmer to feed my family.

There was a time that being a felon meant something: it meant that you did something so horrible, you deserved to die--and you were executed swiftly. We've watered down the definition of felony greatly since that time, that "felony" is mostly meaningless.

If a given individual is truly dangerous to innocent individuals--whether it be via demonstration of a disregard for innocent life, or a mental imbalance that prevents the person from acting safely--that person should not be allowed to walk in public. It is a joke to believe that a "felon" (or anyone else, for that matter), bent on harming others, will respect a ban placed on them, once they are out of prison. Add this to the fact that a felon who has completed his terms of punishment has as much a right to life as any other individual, and I can't help but agree that felons should be able to keep and bear arms as well.

Posted by: Alpheus | Sep 26, 2011 4:22:55 PM

I'm a convicted felon and live in tennessee, i was convicted of theft and forgery, i have since had my full rights restored and am trying to obtain a hand gun permit to protect my family due to my wife owning a bail bonding company and having to deal with very dangerous people on a daily basis and many of them knowing where we live, this battle is going to be a up hill one for sure, i have hired a team of lawyers and they can't seem to help what now any suggestions?

Posted by: casey lawson | Dec 16, 2011 11:21:18 PM

Alpheus, neither a theft nor a forgery conviction will prevent you from possessing a firearm in Tennessee if your full rights have been restored (in Tennessee or any other state). The statute regulating firearm possession by convicted felons only prevents those who have previously been convicted of violent felonies or felony drug offenses from legally possessing a weapon. Neither of your convictions fall into those categories, so as long as your pardon restored your rights, you shouldn't have a problem. You certainly didn't need to hire a team of lawyers for that questions, and if you did and they couldn't figure it out, you sure as hell should try to get your money back!

As for the "full faith and credit" comments...although Art. 4, sect. 1 seems clear on its face (and thank you for actually reading the Constitution), Supreme Court precedent clearly states that a state is NOT required to give full faith and credit to another jurisdictions laws or decisions if such laws or decisions are in direct conflict with the public policy of the home state. The question then is whether Tennessee's public policy in regards to possession of firearms by felons conflicts with that of Georgia.

And, unfortunately, despite the pardon, Mr. Blackwell is still a convicted felon under the law. Although the pardon relieves him of punishment, it does not relieve him of the fact that a crime was committed for which he was convicted.

Although the Supreme Court has now recognized the right to possess a firearm as an individual, fundamental right, it has also said its rulings do not prevent states or the federal government from enacting or enforcing laws that prohibit felons from possessing firearms. The real question in this case is whether the pardon, in light of the fact that the right is now a fundamental right, automatically restores a felon's right under the 2nd Amendment. It's a very interesting question and, I believe, a question of first impression for the courts.

Posted by: paul | May 9, 2012 3:05:23 PM

Everyone has to remember that even if a state allows a non- violent felon to possess a firearm they are still NOT ALLOWED to under federal law......Federal law trumps state law all the time. The federal regs clearly state that the feds recognize a pardon as allowing all rights including your firearm rights to be restored.....What is Tennessee thinking.....So what happens if a convicted felon who received a pardon in GA. and received his gun rights back and who has a Concealed Carry Permit comes to Tennessee since Tennessee has reciprocity with GA? I guess will arrest them all.......The man paid his debt, got a pardon now GIVE HIM HIS DAMN GUN RIGHTS BACK....SHAME ON YOU TENNESSEE!

Posted by: Pardonme | Jul 16, 2012 5:53:49 PM

i think when you payed you dews in jail the felon should be took off you because it hurts you the rest of your life you cant get a job over it you pay for that mastake the rest of your life i think the law needs to change. when you get out of jail and cant get a job because you got a felon nailed to you then you have to do something to eat and thats why so minnie goes back to jail over the felon word that stay with them until they die.i think all the ones thats got a felon on them and has been clean for 10yrs or more should be able to have there rights back

Posted by: tj | Jul 19, 2012 6:02:13 PM

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