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February 13, 2008

More thoughts about the scope of Second Amendment rights

My post this morning about the potential scope of Second Amendment rights and the prospect of felon gun right has led to some great comments, and now I want to fill out my (half-baked?) ideas in this arena.  Specifically, I want to highlight how far courts often go to protect important provisions of the Bill of Rights, and then question whether other Second Amendment fans really have the courage of their convictions.

Specifically, consider that in the Fifth Amendment context, the right not to "be compelled in any criminal case to be a witness against himself" has been interpreted to require Miranda warnings.  Or consider that in the Sixth Amendment context, the right "to have the assistance of counsel" has been interpreted to require the state at its expense to provide an effective lawyer.   

In other words, whether seen as living or dead, provisions in the Bill of Rights have often been dynamically interpretted to safeguard rights against the government that courts consider important (and I am not even talking about any penumbral emanations).  And, lets play out the Sixth Amendment analogy in light of current federal law barring all felons from gun ownership:  Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felon to hire a lawyer?

Again, lets keep the context in mind as I play out these ideas: I fully understand why people who do not support individual gun rights are eager to deny gun rights for felons and to support long sentences for gun crimes.  But this returns me to the tough question for genuine supporters of individual Second Amendment rights: if a person really, truly, deeply believes in an individual and fundamental right to keep and bear arms, why should this person (other than for reasons of political expediency) be willing and eager to concede that such a fundamental right is always forfeited by anyone who has ever committed a felony?

February 13, 2008 at 08:27 PM | Permalink


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Currently, the law regarding the rights of felons seems sorta arbitrary. For example, states can deny felons the right to vote but cannot deny them the right to marry. Neither original intent nor any other prinicple seems to explain such results.

Posted by: dm | Feb 13, 2008 10:34:56 PM

How about the right to be represented in congress? Can convicted felons forfeit their right to pay taxes?

Posted by: EJ | Feb 14, 2008 12:02:09 AM

It all boils down to nobody caring about the rights of felons. As far as most people are concerned, felons should be locked up behind bars with the keys thrown away. So politicians and law enforcement can scheme together to keep them from voting, keep them off juries, and lay all sorts of "gotcha" traps for them to allow easy re-prosecution for "new" offenses. Felon doing this, felon not doing that, felon touching this, felon not registering for that. Nobody cares, except a few intellectual people like myself who are called "soft on crime" and told they don't care about children.

It's not fair that only people who have never encountered the dark side of the criminal justice system are allowed to vote for politicians, all of whom want to pass new penal statutes. It's also not fair that those accused of crimes have to be tried by juries composed entirely of people who likewise have never encountered the dark side of the criminal justice system. A jury of one's peers and a fair cross-section of the population means any jury should have at least 2-4 felons (who have served their sentences) on it. You can't truly appreciate the criminal justice system for what it is unless you've been charged with a crime or practiced criminal defense law for a few years.

Posted by: bruce | Feb 14, 2008 1:23:04 AM

If the Second Amendment has not been applied to the states, how is the right a fundamental one?

Posted by: federalist | Feb 14, 2008 1:42:02 AM

Gotta agree with federalist, above. Under an originalist understanding, the 2d Amendment would have nothing to say about state legislative action, since the Bill of Rights was expressly meant to limit federal activity, not state. Of course, it's all theory now since the fiction of selective incorporation has allowed the SCOTUS to bind the states to the provisions of the Bill of Rights. But theoretically, there's your justification for (at least state) prohibitions on firearm possession by felons.

Federal laws to that effect-- you may have a point. Hard to see how they escape running afoul of the very broad sweep of the Amendment.

Side note to Bruce: perhaps people don't listen to you not because you're a self-styled "intellectual," but because you come up with crack-pot ideas like mandating that felons serve on juries, as if that is what is meant by a jury of one's peers. Could it be that the idea is aimed more at ensuring the success of the defense attorney in gaining easy acquitals, rather than ensuring the right of the defendant to a fair and impartial tribunal?

Posted by: Tom McKenna | Feb 14, 2008 8:03:17 AM

Why is it a "crackpot idea" to have formerly incarcerated/convicted people serve on a jury? Going through the criminal justice system does not (although arguably it should) inevitably make it impossible that such a person would be a fair and impartial juror. Even a formerly incarcerated person can look at the evidence and tell you whether someone "did it." Having a formerly incarcerated juror involved in the sentencing process would be the most interesting arena for any bias they have to play out.

Posted by: M | Feb 14, 2008 9:21:45 AM

I think many 2d Amendment advocates aren't aware of how many people we're talking about, or perhaps they'd care more. In Texas, we release 70,000 felons per year from state prisons, and around one in eleven adults has a felony conviction. FWIW, in TX voting rights are reinstated automatically as soon as the person is off parole (or probation, for that matter). Also there exists a process for felons to petition for reinstating gun rights, but it's little-publicized and seldom used, not automatic like voting.

Posted by: Gritsforbreakfast | Feb 14, 2008 9:28:39 AM

Perhaps felons should be denied the right to procreate. just saying...

Posted by: rob | Feb 14, 2008 10:18:20 AM

Your analogy is interesting, however, in light of how we view most other rights when they jeopardize peoples' safety it falls somewhat flat. A classic example, we hold that the freedom of speech is clearly a fundamental right but we also make it a crime to yell fire in a crowded theater. We need not parse through the nuances of constitutional law to justify why this would be illegal despite freedom of speech. I imagine that this analogy better represents this constitutional question of restricting gun ownership for felons, as opposed to the sixth amendment one.

Posted by: Michael | Feb 14, 2008 10:19:56 AM

This response is an oversimplification, but here goes.

Prof. Berman asks an interesting question. If the Second Amendment is to be treated like other provisions of the Bill of Rights, it is interesting to ask what path court-developed doctrine might take.

Each of the other provisions seems to have its own history. If there's any common thread, though, it's that each provision has a purpose and that the courts have tweaked the doctrine to further the purpose and prevent the provision from becoming an empty formality. (This is oversimplified, of course--some of the expansions are just the excesses of the Warren Court).

The criminal procedure amendments, for example, were written before professional police forces or the regulatory state existed, and the list of crimes out there was much smaller. Those amendments were meant to regulate interactions between the government and people suspected of crimes, and the government's resources have vastly expanded since then.

The purpose of the First Amendment's free speech clause is debated (is it to protect the political process, the "marketplace of ideas," dissenting views generally, or a more personal right of self-expression?), but things like evolving mass media technology, the regulatory state, and modern campaign finance have forced the courts to question what "freedom of speech" is and what protections it's supposed to get.

The purpose of the Third Amendment is pretty straightforward, and the government has fortunately seen little need to push the envelope on that.

For the Second Amendment, though, the purpose is hotly contested. Do people need weapons to serve the government in the military or to keep it at bay and perhaps overthrow it if it becomes tyrannical as Britain did? Is self-defense one of the purposes of the Second Amendment, or is it just one of the reasons why a lot of people now want to own guns? The only real innovation since its drafting has been gun technology, which would seem to cut in favor of contracting the scope of the Second Amendment rather than expanding it.

I'm sure that I've made plenty of errors above, but it seems to me that the courts need to settle the question of what purpose the Second Amendment serves before they can decide what its implications are. I'm very much in favor of textualism but as I think Prof. Berman points out, the Supreme Court hasn't taken a purely textualist view of most of the amendments, and the meaning of the text of any amendment is necessarily informed by the history surrounding the drafting.

To make a somewhat unrelated point, I think that modern gun rights activists are usually big fans of personal responsibility. Whether this is because of philosophical reasons or political expediency, enthusiastic gun rights people are often the first to acknowledge that with gun ownership comes responsibility. As such, they might be more willing than Prof. Berman to defer to the government's judgment that people who break the more serious provisions of the law are less likely than most to be trusted with the responsibility that gun ownership entails, and less deserving of the right.

Posted by: | Feb 14, 2008 10:30:27 AM

Doug B: The simple answer, as I already suggested in my previous comments, is that one can truly and deeply believe in a constitutional right, and yet now subscribe to Warren-era insanity whereby rights are totally divorced from the historical understanding that begot them, in an illegitimate attempt to expand the scope of the right as much as one can get away with.

What you call "dynamic" interpretation, I call living constitutionalism, such that your attempt to avoid the originalism debate falls flat. I truly believe in the 1A, but I don't think the govt has to give me enough money that I can afford to widely distribute my speech. I truly believe in the 4A, but I don't think the govt has to give me money to cover my backyard so it can't be observed by outsiders. Constitutional rights are grounded in history: they are not simply empty terms that should be expanded as far as can be if there's a tenable connection to the words of the provision.

There is no historical support for preventing felons from hiring counsel. On the other hand, there is an unbroken wall of authority supporting felon disenfranchisement and felon disarmament. For those of who believe that even constitutional amendments in which we truly believe are limited by the original understanding, that's the end of discussion.

Posted by: Anonymous | Feb 14, 2008 10:50:00 AM

Tom: i was not calling for mandating felons serve on juries, merely saying that a large enough portion of the population are convicted felons that every jury should have a couple on it, as a fair representation of the community. It's certainly not fair to make sure that every jury has NO felons on it, to ensure that people to be convicted of a crime are tried by people who have never been convicted of a crime. In an era where "law abiding" has nothing to do with morality, it is particularly troubling that those with felony records are excluded from participating in the jury system.

But i'm not saying a jury should be required to have any particular group of people on it, whether it be felons, minorities, women, or whatever.

Posted by: bruce | Feb 14, 2008 11:50:14 AM

In an era where "law abiding" has nothing to do with morality, it is particularly troubling that those with felony records are excluded from participating in the jury system.

That's an odd premise. There are a lot more malum prohibitum crimes out there than there used to be, but most of those are misdemeanors. Most felons have insufficient respect for the social contract to be trusted with enforcing it.

Posted by: | Feb 14, 2008 11:58:53 AM

Doug, I think that as long as we have a procedure for restoring civil rights, that is, a full restoration of civil rights --in which case, upon full restoration the firearm right would be restored. Here, the problem is not the constitutionality of 18:922(g)(1) [forget about the 18:924(e) argument], but the lack of an available "full restoration" of rights, for example in Florida, where I live. Supreme Court cases like Beachum [ph] and Caron v. US [ph] should lend support to my logic here and that logic is this: to be convicted of a 922(g) offense, a prior "felony" conviction is required. Since the States determine restoration of rights, if a convicted 922(g) offender's Home State / State of Conviction does not have a meaningful procedure to provide for a full and complete restoration of rights --then under the doctrine of --oh, I don't know, how about "constitutional avoidance", the statute, 922(g) should be interpreted to have an exclusory clause. This means that lack of State action, or the inability of the State to fully restore one's civil rights, would be the deciding factor in whether a 922(g) offense could be charged by federal authorities. RLH. Visit me on the web at: www.youtube.com/rohmphrys Mr. Humphreys is the OJTLawyer.

Posted by: Ronald Humphreys | Feb 14, 2008 12:20:30 PM

I think you may be right about most felons having insufficient respect fot the social contract of serving on a jury. I also think that there are more felons than you think that have learned by their mistakes and grown from them that would welcome the opportunity to serve on a jury. I know that I would because I am a convicted felon(marijuana possession 1986) who knows first hand about losing priviledges and how almost impossible it is to get certain rights back.

Posted by: Gary | Feb 14, 2008 12:28:55 PM

As stated above, felons are deprived of many of their constitutional rights after being convicted. The right to vote is one, the right of privacy is another as felons are often subject to DNA collection w/o probable cause and often lose their 4th amendment rights as part of the terms of probation/supervised release. So I don't think the positions by the gun lobby are ENTIRELY inconsistent. Although I do think they are generally wrong...

Posted by: Law Clerk | Feb 14, 2008 2:16:32 PM

I might go for letting felons on to juries, but only if the juries also included people who had been the victims of crimes. It's easy to bluster about the dark side of the criminal justice system when you have not experienced, or known someone who has experienced, the dark side of society. But right now having been the victim of crime--especially the crime for which the defendant is on trial--is a near-automatic ground for being dismissed. Once again, this blog is turning the criminals into victims and overlooking the true victims of crime.

Posted by: | Feb 14, 2008 4:07:06 PM

Since felons are not allowed to serve on juries, perhaps they should be prohibited from testifying for the prosecution. Many cases are built around information provided by paid (and or) felon informants.

Posted by: beth curtis | Feb 14, 2008 4:49:15 PM

All drug crimes are malum prohibitum. Drug crimes are the majority of felony convictions. There is nothing inherently evil about possessing, using, selling, or making powders and leaves.

Posted by: bruce | Feb 14, 2008 6:14:17 PM

A felony conviction should NOT be sufficient for removing a person's right to keep and bear arms. With the "toughening" of felony laws, a person can get a felony charge for toilet-papering a tree(felony criminal mischief) or reckless(not drunk) driving. How is a person convicted of TAX EVASION "violent"? No, loss of firearms rights should be for either limited reasons or by a judge at time of sentencing. Hell, you can lose your gun rights for MISDEMEANOR "crimes" now.

Posted by: Fiftycal | Feb 14, 2008 7:47:20 PM

Fiftycal: the legislators who passed the law, who are all tax cheats themselves, just like their biggest campaign contributors, made sure to put an exception in the federal felon in possession of firearm statute for tax-evasion related felonies.

Posted by: bruce | Feb 14, 2008 10:24:26 PM

another issue is the current arbitrariness and irrationality of continuing to use the labels "felony" and "misdemeanor" in the modern era of grid sentencing. In NC we have felonies for which the def cannot receive active prison time and misdemeanors which carry two years. Which is the more serious?

bruce cunningham

Posted by: bruce cunningham | Feb 14, 2008 11:29:14 PM

BRUCE WRITES: "A felony conviction should NOT be sufficient for removing a person's right to keep and bear arms."

MR. HUMPHREYS ADDS: Interesting. Perhaps only two types of felonious activity should FORFEIT the RIGHT: (1) any crimes of violence which results in serious bodily injury or substantial financial loss; and (2) any crime of violence committed with a firearm (excluding the drug trafficking prong to 18:924(c)).
A final thought regarding the possibility of a sentence under 18:924(e)(1). It is time to require this enhancement to have a comparative 21:851 notice and it is time for the S.Ct to recede from its 1990ish position that 924(e)(1) is just a sentencing statute (even though it has "elements" to elevate what we call "the degree of a crime" or level of culpability). 21:841(a) was once thought of as having drug quantity sentencing provisions, those being :841(b)(1)(A); (b)(1)(B); (b)(1)(C), (b)(1)(D). Jones kicked off a series of decisions --the very reason for Apprendi, Booker, Blakely, Kimbrough and more to come-- which changed our UNDERSTANDING of WHAT IS AN ELEMENT OR IS NOT AN ELEMENT. --Just some final thoughts. RLH

Posted by: Ronald Humphreys | Feb 15, 2008 6:00:23 PM

As long as they've served their time and are released from prison, I don't care if they have 40 convictions for violent use of a firearm. They should not have their right to possess one taken away from them. Now, someone with 40 convictions for some felony involving the violent use of a firearm probably won't be out of prison. So, let's say two convictions for attempted burglary both with the use of a firearm. 10 years on the first conviction, 15 years on the second. Both sentences fully served. This two-time felon who is not on probation or parole and has paid his debt to society should be permitted to possess a firearm (if not solely for self defense, as hunting is not a necessity of life nowadays) just like all other citizens.

I'm sure I'm in the minority here, but that's fine.

Posted by: bruce | Feb 15, 2008 11:06:56 PM

This is an issue that I have questioned repeatedly since I began practicing law. I am a former prosecutor and defense attorney, and have wondered why no one has challenged this issue, since I can't imagine it passing the US Supreme Court's "strict scrutiny" test. In short, to infringe on a fundamental constitutional right, the state must prove a compelling governmental interest, and the remedy must be narrowly tailored to achieve that goal.

In that light, blanket prohibitions against gun ownership by felons does not pass muster. Now that many states have passed laws making everything including bad check writing a felony, the remedy does not serve any compelling governmental interest, nor is it narrowly tailored enough to prevent catching too many people in its net. There is no valid reason why someone who is convicted of passing a bad check, or concealing property subject to a security interest so that a secured creditor cannot repossess it should lose their constitutional right to own a firearm. It simply makes no sense and does not further any legitimate governmental interest.

In short, I believe that the prohibition should be limited to any felonies classified as violent, because that, in my opinion, is what will pass constitutional muster. I just can't understand why someone hasn't challenged this yet.

Posted by: Chuck | Apr 28, 2008 3:01:22 PM

convicted felon-20 yrs ago.
My felony convictions were non violent and non sexual, and 20 years ago. I have not been in trouble since. I paid my debt to society by serving time for my crimes. Why am i still being punished today for what's been paid for with my life's time 20 yrs ago? I thought doing time paid for the crime, is that not the purpose of doing time is for? Does this not fall under double jeopardy or something to that effect?

Posted by: Micheal | May 12, 2008 4:05:18 PM

I am with Chuck. Felon convicted of non violent/sexual crimes over 10 years ago. I am now a registered voter, tax paying small business owner, husband, father, church member, etc. My contact with law enforcement in the past ten years has been a speeding ticket, and a victim of property crimes. I believe there should be a "practical" system for the restoration of one's rights to posess/ own a firearm.

Posted by: Rick Blackburn | Aug 10, 2008 6:09:27 PM

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