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December 26, 2007

Hunting, pardons and a Second Amendment claim?

This local article from North Carolina has me thinking again about whether a few felons might have a viable constitutional claim if (when?) the Supreme Court decides that the Second Amendment protects an individual right to keep and bear arms.  Here are excerpts from the article:

As a boy, Gary Don Holt would roam the woods with his father and uncles, hunting for rabbits.  It's been more than two decades since he had the chance. Arrested for marijuana possession in Onslow County in 1986, Holt is a convicted felon and must stay away from guns. When his father dies, he'll have to ask his sister to hold on to a family heirloom he has been promised: a shotgun passed from father to son for generations.

Holt's felony at the age of 21 has robbed him of much over the years: jobs, jury duty, promotions.  Of all he's missed, not being able to hunt is one of the biggest sacrifices. Holt's father is getting old, and he'd like to shoot at critters in the woods with him once more. Holt, a supervisor at a furniture warehouse in High Point, turned to Gov. Mike Easley to make that happen. Twice, he's asked Easley for a pardon. Twice, Easley has turned him down.

"It was like a sledgehammer hitting me," Holt said. "I've turned out so good. I thought there was no way he could turn me down."  Easley has heard pleas like Holt's before. Each year, a dozen or so would-be hunters beg Easley for pardons. Though a pardon wouldn't clean their records, it would give back certain privileges such as the ability to possess a firearm.

Among the recent requests: A Duplin County Boy Scout leader who sold marijuana in college wants the chance to hunt with his teenage son. A Dunn man who said he accidentally shot his girlfriend to death wants to hunt with his children.  A 68-year-old homebuilder in Alamance County accused of taking indecent liberties with a girl wants to hunt one last time.

Easley has the power to forgive each one but is frugal with his pardons. Since he took office in 2001, he has pardoned five people, each one a man who had received prison time for crimes that another man committed....

"I feel like I'm still doing time for the crime, for 21 years," Holt said. "Don't you get to be done at some point?"  When police arrested him in 1986, Holt said he was immature and smoked pot recreationally. He would give it away to friends.  Holt said one of the friends informed on him to get a break on a pending criminal charge.  Holt agreed to plead guilty and was put on probation. He said he had no idea the implications of a felony conviction.  "I thought it was a slap on the wrist," Holt said. "I was just grateful I wasn't going to prison."

Since then, Holt has put himself through community college and has become a certified emergency medical technician.  He teaches martial arts to police officers for free and coaches his 9-year-old daughter's basketball team. His sisters, a colleague, friends and even his ex-wife wrote letters to the governor vouching for his good character. "I feel I'm more than responsible to have a gun," he said.

Without a pardon, hunting is too big a risk. Federal law prohibits felons from owning, using or even handling any type of gun. 

As I have suggested in some prior posts about the Second Amendment, I think a felon like Holt might have a viable constitutional defense to a criminal prosecution for going hunting if the Supreme Court ultimately holds that the Second Amendment protects an individual right to keep and bear arms subject only to reasonable regulation in the name of public safety. 

In this context, consider the analogy to other Bill of Rights freedoms: does anyone dispute that Gary Don Holt still has a robust right to free speech and to the free exercise of his religion despite his status as a felon?   Why should his Second Amendment right to keep and bear arms (assuming it is an individual right and not a collective right) be afforded so much less protection that his First Amendment right unless and until the government can reasonably show he poses a clear threat to public safety?

Some related posts:

December 26, 2007 at 05:23 PM | Permalink


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There are a a significant number of public order offenses that involve possession of a firearm by a felon. Very few of them involve hunting some of them involve a serious threat to public safety and for others there is no significant threat. No doubt in may cases there is little risk to public safety in allowing a felon to hunt.

Posted by: John Neff | Dec 26, 2007 6:07:03 PM

IMHO, the right to bear arms is more analogous to the right to vote. It can be lost upon conviction of a felony, if the law so provides, and giving it back is a matter of grace on the part of the state, not a right of the convict.

Posted by: Kent Scheidegger | Dec 26, 2007 7:04:10 PM

So Kent under your view rights can be surrendered "if the law so provides." If that is true then inalienable rights as set forth by our founding fathers (life, liberty, the pursuit of happiness) can also be surrendered. Presently, the law permits the government to take life. Presently, the law permits the government to take one's liberty. And presently the law puts alot of limits on one's pursuit of happiness. I guess inalienable meant something different way back when. However, if a right is inalienable then it seems to me that it is not an "act of grace" when it is restored by the state but the citizen due to its inalienable quality, in fact and in law, has a right to its restoration.

Posted by: KAY | Dec 26, 2007 8:24:45 PM

Certainly a right can be lost as a consequence of committing a felony. Otherwise imprisonment for murder would be unconstitutional. You don't seriously think the Declaration of Independence is a Declaration of Anarchy, do you, Kay?

Posted by: Kent Scheidegger | Dec 26, 2007 8:37:30 PM

Why do you compare the right to bear arms with the "right" to vote. As far as I know, convicted felons who served their time keep all of their first, fourth, fifth, sixth, and seventh amendment rights. Of course they don't keep their right to vote- the constitution never gives a right to vote in the first place. SCOTUS precedent notwithstanding, the constitution simply bans discriminating in giving the vote on the basis of race, sex, or age (for people over 18). Of course, a state that chooses to deny the right to vote to any male under 21 other than for a reason of being a convicted criminal is subject to losing seats in the House of Representatives, under the fourteenth amendment. But until the fifteenth was passed a few years later a state was free to take the penalty and deny even blacks the right to vote. So why do you compare the right to bear arms, a right guranteed in the bill of rights no less than those in the first and 4th-7th amendments, to the "right" to vote, a right that has always traditionally been a state perogative.

Posted by: Puzzled Reader | Dec 26, 2007 9:46:11 PM

Sorry for the substitution of periods for question marks at the end of the first and last sentences.

Posted by: Puzzled Reader | Dec 26, 2007 10:49:05 PM

My point is that your "act of grace" argument does not hold water if you believe in the concept of unalienable rights. Today, as it was viewed some 230 years ago by the Crown, the declaration of independence would viewed by those in power, as a declaration of treason. The point here is that tyranny by the Scheidegger majority means there is no foregiveness-no closure--all felons are forever disinfranchised. To my way of thinking, the Constitution and the Declaration of Independence don't support tyranny by the majority. I recongnize that government, in power, decides (1) what constitutes a felony and (2) how to punish the commission of a felony. However, to continue to rule by consent and and concommitantly maintain an air of legitimacy one should question why the government uses the blunt instrument of "felony" classfication to make sure that a person who possesses marijuana forever loses the right to possess a gun. This isn't anarchy--it is just asking that the punishment reasonably fit the crime. In Mr. Holt's case there is no connnection between possession of marijuana and possession of gun for hunting purposes. How is lifetime disenfranchisement fair? How does that punishment promote a belief in our citizenry that the government is legitimate?

Posted by: KAY | Dec 26, 2007 10:59:12 PM

Puzzled, the Supreme Court does not share your view. See, e.g., Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966). Whether that is consistent with original understanding is a debate I'd rather not get into in this thread.

Kay, the "Scheidegger majority"???? I wasn't aware I was a majority.

I did not say that lifetime loss of gun rights for commission of any felony was fair. I said it is constitutional. Do you understand the difference? It is appalling how many people do not.

If I were a legislator, I might very well vote to amend the law at issue in this case. If I were a judge, though, and Mr. Holt asked me to strike it down, I would say, "Write your congressman."

Posted by: Kent Scheidegger | Dec 27, 2007 3:02:30 PM

Doug, why does the government have to show that Mr. Holt is dangerous. Isn't it enough, assuming that there is even a claim, to show that removing guns from convicted felons in general protects public safety?

Posted by: federalist | Dec 27, 2007 3:54:13 PM

Doug, I am litigating the constitutionality of a blanket prohibition of a felon from ever possessing a gun and have filed a motion to dismiss the Poss of firearm charge based on Second Amendment grounds. I've also filed a motion to continue the trial of the case until after Heller is decided. I'll send you a copy of the motion to dismiss.

bruce cunningham

Posted by: bruce cunningham | Dec 27, 2007 8:44:41 PM


What stops your paternalistic instinct from taking it to the next step? "Isn't it enough to show that removing guns from everyone in general protects public safety?"

Posted by: Rn | Dec 27, 2007 9:01:46 PM

I don't think I have a paternal instinct, far from it. I just don't think that my policy preferences are somehow enshrined in Constitutional law simply because I believe them.

The slippery slope argument you present is a pretty weak one. The next step is prevented by the fact that one has to have committed a crime.

Personally, I loathe gun control. I believe that unless the government is going to be the guarantor of your safety, then it has no moral authority in preventing you from having a gun. (I myself do not, by the way.) Moreover, an armed populace likely has a chilling effect on a lot of government overreach, which is not necessarily a bad thing. Limited felon-disarmanent laws are bothersome to me, but there is a necessity to disarm some felons. Holt should be allowed to hunt, carry a gun etc. He paid his price a long time ago, and he has led a law-abiding life. Easley's refusal to pardon him and others like him seems petty and silly, and a system where stale petty convictions create issues like these for people who have lived long law-abiding lives is needlessly draconian.

Posted by: federalist | Dec 27, 2007 9:14:33 PM

And I might add, needless draconian treatment of petty criminal behavior (e.g., some of the nonsense attempted to be meted out to juvenile "sex offenders" who slapped girls on the buttocks) and needless draconian treatment to people who have long since served their sentence and have lived law-abiding lives since, undermines confidence in the criminal justice system, which in turn results in less support for draconian penalties when they are needed.

Posted by: federalist | Dec 27, 2007 9:20:59 PM

that federalist believes Holt should be able to hunt gives me encouragement for my client who had his grandfather's shotgun in a guncase in his bedroom and had a 20 year old drug possession conviction. The shotgun was brought to the defendant's house by his mother who had been told by her husband's doctor to get the gun out of her house. The husband, the def's son, has Alzheimer's and the doctor was concerned about suicide.

bruce cunningham

Posted by: bruce cunningham | Dec 28, 2007 8:33:58 AM

Bruce, if I were I judge, I would turn Holt down. However, I believe that Mr. Holt ought to have the conviction completely erased from his life. He's a productive citizen who made a mistake and has paid for it.

Posted by: federalist | Dec 28, 2007 11:13:54 AM

Federalist, it seems like you are ignoring the fact that Apprendi is a reaffirmation of Marbury's basic principle of judicial supremacy. I think it is no longer acceptable for a judge to say " I don't think it's fair but that decision is up to the legislature. Now, as a judge you should ask "does this law violate the due process clause of the constitution (which is premised on the concept of "fundamental fairness")"

I agree that when a legislature chooses between two constitutional choices a judge may not second guess. But when a statute is irrational and not reasonably related to any legitimate governmental interest, a judge has authority, and should, intervene.

bruce cunningham

Posted by: bruce cunningham | Dec 28, 2007 10:35:41 PM

I am the subject of some of the comments posted above. My crime did not include a weapon nor have I ever had any history of violence. I just wanted to say that Governor Easley has the power to make a very positive impact on my life and others.I find it extremely difficult to believe that in his two terms as Governor of North Carolina that only five people warranted a pardon. I want to thank all of the people who have shown support for me since the article was written. It has really meant a lot to me.I will not give up!

Posted by: Gary Holt | Jan 3, 2008 10:24:53 AM

Louisiana has the first offender pardon which is automatic upon completion of a sentence. It doesn't restore inosence but it is still a pardon and should count as a pardon under 18 USC 921 (a) (20). Louisiana also restores gun rights after ten years and in cases of unenumerated crimes gun rights are restored upon completion of a sentence. See also United States v. Dupaquier 5th circuit.

Posted by: Paul | Jan 8, 2008 1:26:37 PM

I think what you all miss what is going on in the real world, My state (MI)turns laws that werent a felony in to a felony.

Posted by: John Ellison | Feb 6, 2008 9:06:14 PM

I am a retired Texas peace officer currently working as a correctional officer.

Just one question. When in this country's history did a minor felony conviction become the equivalent of a life sentence?

When I first entered law enforcement - The possession of any measurable amount of marijuana was a felony. Theft over $50.00 was a felony. Theft of a $0.69 package of bologna was a felony.

People who were convicted of these crimes are still serving their sentence. How did we let this happen?

Posted by: W. W Woodward | Feb 7, 2008 4:58:12 PM

I committed a non violent crime in 1991 in NC. I am branded a felon for life in NC.

After the mistake, I went to college, earned a degree and a productive member of society. I have held positions of trust for over 10 years.

But still a felon.

Posted by: George | Feb 11, 2008 4:11:32 PM

i was convicted in 1970 for stealing a car and taking it across state lines making it a federal case.i was young and stupid no excuse.If i remember right they setenced me under the federal youth act which i think was referred to as zip 6. I could get out in 60days to six years.it ended up costing me 3 years locked up and i got realeased from parole after another three.my release paper said you have been pardoned under the federal youth act.so i thought this means my records cleared.any info on this.thanks

Posted by: richard mcgregor | Mar 13, 2008 5:36:57 AM

That's not exactly true about no weapons. First, write the BATF. I did. They said non-rimfire guns and rifles are fine, but check with your local police first.

Posted by: | Dec 26, 2008 4:12:21 PM

GPS tracking systems are only a small part of what it takes to keep our children safe from sexual predators. First of all, legislators need to ensure that these sex offenders cannot reside anywhere near children. Police need to spend less time hiding with their radar guns to give speeding tickets and more time monitoring areas where sex offenders reside. GPS tracking bracelets are a must! The people monitoring GPS trackers most be competent and knowledgeable.

Posted by: jordan shoes 1 | Nov 29, 2010 3:06:10 AM

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