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May 11, 2008

Will pro-gun commentators assail politicians who dis the Second Amendment rights of former felons?

In the wake of pro-gun talk on the campaign trail, commentators are noting the new eagerness of Democratic candidates to embrace the Second Amendment.  For example, John McCormack has this Weekly Standard piece titled "We're All Gun Nuts Now: The Democrats sidle up to the Second Amendment," and David Kopel has this Townhall piece titled "Gun Owners For Hillary?". 

Both commentators are justifiably suspect about the Democrats candidates true views on the Second Amendment: McCormick notes that "both contenders for the Democratic presidential nomination [are] evading the gun control issue [before the Supreme Court in Heller] as if it were sniper fire"; Kopel asserts that "Senator Clinton no more deserves gun-owner votes than Lord Voldemort deserves the Muggle vote."  Both McCormack and Kopel rightly note that the Democratic candidates have not seriously spoken or voted in support of individual gun rights until the Heller case and modern politics made the Second Amendment a hot constitutional provision.

But as I have noted in prior posts, Second Amendment debates and politics could change dramatically if (when?) the Supreme Court rules in Heller that the Second Amendment protects an individual right to keep and bear arms, especially if (when?) sympathetic nonviolent ex-cons challenge broad federal laws prohibiting all felons (and domestic violence misdemeanants) from any and all gun ownership.  I suspect and fear that even consistently pro-gun politicians will dis efforts by felons to assert Second Amendment rights.

I wonder if McCormick and Kopel and other commentators will then take these politicians to task for not having the courage of their pro-gun convictions when the persons asserting gun rights are not quite as politically popular.

Some related Second Amendment posts:

May 11, 2008 at 10:58 AM | Permalink


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I see no basis for attributing a distinction between gun rights for law-abiding citizens versus for convicted felons to a lack of courage. It is an entirely logical, consistent position to believe that guns should not be outlawed but that outlaws should not have guns. A person who believes in a right need not believe in carrying that right to an extreme trumping all other considerations. This is particularly true when we are talking about removing a right from people who have made a voluntary choice to commit an act that carries that consequence.

Posted by: Kent Scheidegger | May 11, 2008 12:46:09 PM

Kent, I think your comment assumes that there is some rational distinction between misemeanors and felonies, which in this era of "structured sentencing" is clearly not the case.

In North Carolina we have felonies like "Failure to Appear in Court" and "Littering in excess of 500 pounds". We have misdemeanors like "Assault with a Deadly Weapon" and "Going Armed to the Terror of the People"

Explain to me how it makes any sense for a litterer to be prohibited from possessing a gun but a person convicted of assaulting someone with a deadly weapon can carry a gun.

This is not meant so much as a criticism as an observation; but it seems to me a lot of the posts you make ignore the reality of modern criminal jurisprudence, which, since the politicians have gotten involved, has become progressively more irrational.

bruce cunningham

Posted by: bruce cunningham | May 11, 2008 12:58:13 PM

What about jaywalking? Should jaywalkers be allowed to own a gun? Wait, it's the cop that shouldn't be allowed to own or carry a gun.

"We've made a lot of progress," said Sgt. Neville Gittens, department spokesman.

Matt Dorsey, spokesman for City Attorney Dennis Herrera, said the officers in the Medora case did nothing wrong, and the city settled only to avoid a potentially more costly jury verdict.

That's what all the felons say.

Posted by: George | May 11, 2008 1:03:44 PM


Your argument is one for drawing the statutory line in a different place, not for a constitutional mandate eliminating the line altogether. If the category of felony has been so inflated that we should limit the revocation of gun rights to some defined subset (such as California's "serious" and "violent" felonies), that is a statutory modification that can be considered. The assertion that the Second Amendment gives convicted felons a constitutional right to own guns is not suitable for such fine-tuning.

"Nonviolent" is not the place to draw the line, BTW. Burglary of a home is usually classified as "nonviolent."

Posted by: Kent Scheidegger | May 11, 2008 1:14:17 PM


I'm confused. Are you simply assuming that there is only one consistent position here -- if you favor gun rights, you must logically favor gun rights for convicted felons? If so, isn't this a quite controversial assumption? Perhaps you have developed this argument elsewhere, and I am just missing it, but it seems nonobvious at best to me.

More broadly, I gather this post is supposed to take the form of argument in three steps: (1) take a position that you personally agree with, (2) try to come up with a way to present the position you favor as something people who disagree with you should also like, and then (3) accuse those who disagree with you of inconsistency and lack of principle for not agreeing with you. To pull that off, though, step 2 needs to be pretty strong and obvious. My sense, though, is that step 2 here seems pretty weak (assuming you have not developed it elsewhere -- my apologies if you have).

Posted by: Orin Kerr | May 11, 2008 1:32:40 PM

Kent, "burglary of a home" is a "crime of violence" under the guidelines, so your statement is false. Also, "law abiding citizens?" There's no such thing, or at best, that applies to very few people. It's more like "didn't get caught" citizens versus "got caught" citizens, with the "didn't get caught" citizens likely to be wealthier and whiter. In which category are you, Kent? Stop with your bs high horse law abiding citizens nonsense. If there is an individual right to bear arms, then prohibiting a non-violent felon from bearing arms violates that persons individual right to bear arms.

Posted by: John | May 11, 2008 1:37:16 PM

Doug, Kent, Orin,

I can't think offhand of a constitutional right that isn't subject to reasonable regulation. Assuming that the right to keep and bear arms is found to belong to individuals, it will be no different. It is unlikely in the extreme that banning previously convicted felons from possessing firearms will be found to be unreasonable by the Supreme Court. Indeed I'll bet $100 that it won't.

Nor will it make any difference that such bans will be blanket and will not look to the particular facts of the predicate felony. A rough analogy would be to the longstanding rule permitting the police to search the interior of a car pursuant to the lawful arrest of its driver. The Supreme Court held long ago (New York v. Belton in 1981) that it makes no difference whether the driver has been removed from the car and is now under police control. Precisely in order to establish a bright line, the Court held that, notwithstanding that the principal justification for allowing these searches (officer safety) was no longer in play, a full search of the car's interior could be undertaken without violating the Fourth Amendment.

Similar reasoning is likely to apply to the post-Heller constitutional status of felon-in-possession statutes. Although there may be instances in which the predicate felony would not suggest the existence of public danger from allowing this felon or that to possess a gun, the Court will be properly loathe to find that legislatures have been unreasonable in adopting categorical bans. And that will be that.

Posted by: Bill Otis | May 11, 2008 2:41:07 PM

Kent, you are missing my point. I am not advocating for drawing the misdemeanor/felony line in a different place. I am saying that in the modern era of structured sentencing grids, it makes no sense to continue to employ a distinction that makes no sense. I think the Court is moving in that direction, with its decision in Burgess. In Burgess the Court adopted a functional definition of felony. All of this, in my opinion, is Apprendi-related, which ushered in the era of functionalism. "Our inquiry is not one of form, but effect."

Bruce Cunningam

Posted by: bruce cunningham | May 11, 2008 3:06:29 PM

I'd bet $1000 that Bill Otis is right, but still think the state should practice what it preaches. Jaywalking? Please.

Posted by: George | May 11, 2008 3:57:07 PM

Rather than respond directly to questions about my motives or goals, let me walk through my basic thoughts on these topics:

1. I view guns like various other items --- cars, books, golf clubs, steak knives, computers, houses --- that can be used for good/fun purposes and also for bad/harmful purposes.

2. These kinds of items --- even if constitutionally protected via, say, the First or Fourth Amendments --- are certainly subject to reasonable regulations in the name of public safety. But the limits of permitted regulations often depend on how important/valuable society (and judges) view posession/use of a particular item.

3. If one views gun posession/use to be as important/valuable as, say, book or computer possession/use, then the limits of regulation should be perhaps comparable. I wonder if anyone would call reasonable a federal criminal law that prohibited ALL felons from ever posessing/using books or computers.

4. Of course, it may be reasonable to prohibit a sex offender who used a computer to transmit child porn from ever again possessing a computer; likewise it may be reasonable to prohibit a violent offender from ever again possessing a gun. But does that mean that everyone ever convicted of any kind of felony (or any kind of domestic violence) should never be able to have a gun for self-protection and/or other purposes?

5. In other words, a ready willingness to approve categorical exclusion of felons from gun rights suggests to me a rather WEAK belief in the value/importance of gun posession/use or a view that this "right" can be readily forfeited based on WEAK public safety claims.

6. If it is reasonable to categorically preclude millions of felons from gun rights in the name of public safety, would it not also be reasonable to require all gun owners to take certification tests or to comply with onerous/costly registration requirements? (All drivers have to do this and, of course, felons are not regularly prohibited from driving cars).

7. The central point of my post was (a) to suggest McCormack and Kopel are justified in questioning the depth of the support of gun rights from Democratic candidates, and (b) to encourage similar questioning about the depth of the support of gun rights from other politicians if (when?) a potent Second Amendment ruling in Heller starts to change who asserts Second Amendment rights.

Posted by: Doug B. | May 11, 2008 8:18:07 PM

"Also, 'law abiding citizens?' There's no such thing, or at best, that applies to very few people. It's more like 'didn't get caught' citizens versus 'got caught' citizens, with the 'didn't get caught' citizens likely to be wealthier and whiter. In which category are you, Kent? Stop with your bs high horse law abiding citizens nonsense. If there is an individual right to bear arms, then prohibiting a non-violent felon from bearing arms violates that persons individual right to bear arms."

That's a lot of vituperation. What, pray tell, did Mr. Scheidegger say that deserved such a nasty response.

Posted by: federalist | May 11, 2008 8:19:36 PM

I think that Kent's reliance on rhetoric over reality is what has set folks off. Normally, I enjoy reading Kent's posts but his use of chiasmus as a rhetorical device is a bit much. "It is an entirely logical consistent position to believe that guns should not be outlawed but outlaws should not have guns." Sounds like something John F. Kennedy's speechwriter turned out, "ask not what your country..." Kent, I think you can do better than that.

Bruce Cunningham

Posted by: | May 11, 2008 9:48:43 PM

""law abiding citizens?" There's no such thing"

That really is true. I have heard my boss say "I'm a law abiding citizen" while bad mouthing felons but he has told me that when was young he went over seas and brought back drugs for sale.
Not to mention other things he's done. A coworker beat the crap out of his wife and almost got an assault conviction but got off on some sort of technicallity. Another coworker abused drugs in his younger days. They all set themselves apart from criminals when the only differance is that they never got caught.

Posted by: Paul | May 11, 2008 9:59:09 PM

This is what gets me about the federal firearms law. 922 (g) (1) makes if unlawfull for a felon to possess a gun. But 921 (a) (20) says that if a felon, even a violent felon has civil rights restored (i.e. right to vote, hold public office and sit on a jury) and he is not prohibited from possessing a firearm by the state he was convicted in, he can not be prosecuted. But if even a nonviolent felon is missing just one of the three key civil rights everything changes. To me that's unreasonable as hell. I think as long as the state of conviction says a felon can own a gun then federal law should alow it as well. Forget civil righs restored and pardons. That's what I wish the Supreme court would address. What makes it reasonable to place such a broad ban on felons in possession inspite of state restoring firearm rights. Particularly if it is decided that the 2nd admendment is a individual right.

Posted by: Paul | May 11, 2008 10:32:16 PM

Bruce and Paul,

I agree that few if any people obey every law all the time. But to say that is a far cry from saying that merely "getting caught" is the only difference between those referred to as "law abiding" and others.

In ordinary life, we all run across people who, though flawed and not entirely consistent (who is?), are fundamentally decent, honest and straightforward. We also all run across people who are fundamentally self-centered, devious and manipulative. There is an important distinction between the two going well beyond who "gets caught." Roughly that same distinction exists between those who as a matter of routine obey the law and those who as a matter of routine think first about what they can get away with.

That at least is my experience. But if I'm wrong, that would create more reason, not less, to embrace a blanket ban on the possession of firearms by felons. If there is no way to distinguish between well-socialized persons and crooks-at-heart, then society would be foolish to do anything BUT adopt a blanket ban on possession by, at the least, those previously adjudicated to have been the crooks. The alternative -- limiting the ban to previously convicted felons who are really, truly dangerous -- would call on courts to draw precisely the distinction you say cannot reliably be made.

Posted by: Bill Otis | May 11, 2008 10:40:13 PM

Bruce, constitutional law drawing is rarely easily and there’s often no clear line. But if we should narrowly construe constitutional rights because the line drawing is going to be hard, then what’s the point of having a constitution? Should we simply allow congress to ban all sorts of political speech because the distinction between political speech and commercial speech is at times fuzzy? Should we allow Congress to ban all weapons because it’s hard to draw the line between weapons we all agree everyone shouldn’t be able to have (nuclear weapons) and hand guns? Simply because there’s no clear line does not mean the issue is automatically reserved for the legislative branch.

Posted by: | May 11, 2008 11:51:52 PM

Bill, I did not say that a line could not be drawn between really, truly dangerous persons and those who are not. I just said the criteria currently used of misdemeanants and felons does not do that.

bruce cunningham

Posted by: | May 11, 2008 11:54:03 PM

Louisana seems to do a good job of drawing that line. If I have said it once I have said it a thousand times all felons cannot be lumped together. I agree with Bruce that there is clearly no rational distinction between some felonies and misdemeanors.

Posted by: disenfranchised | May 12, 2008 8:03:33 AM

Why shouldn't a non violent felon be afforded the same opportunity to protect themselves or family? Are their lives or family members not as important as the people who have never been caught for a crime?
It is alright for a felon to serve in our military and carry a weapon to protect our country but not alright for that person to protect his own home or self. Please someone respond to this.

Posted by: disenfranchised | May 12, 2008 8:28:54 AM


I agree that the line between misdemeanants and felons does not in all cases distinguish between those who can be trusted with guns and those who can't. But neither does the line between permitting gun ownership to adults while denying it to minors. Yet the adults/minors distinction would certainly withstand scrutiny, under the Second Amendment or anything else, because it is, as Scalia once joked, close enough for government work.

Imprecise distinctions are drawn all the time in law, including in constitutional law, and the Supreme Court is willing to live with this (indeed it has been known to create such distinctions itself) simply because it's practical.

Indeed, Miranda is based on this "close enough" way of thinking. What the Fifth Amendment actually forbids is COMPELLED self-incrimination, not UNWARNED self-incrimination. The Miranda Court surely knew that by no means are all unwarned confessions involuntary. But it decided to use "unwarned" as a proxy for "compelled" because, so it thought back in those days, police power needed reining in, and that was close enough. Although I disagree with that, and would prefer to see the Fifth Amendment enforced according to its actual terms rather than proxy terms (as I said in the Dickerson dispute), I would appear to be taking a lonely position.

Thus, as in Miranda and in the adult/minor distinction in gun laws, I expect the Supreme Court will unhesitatingly endorse the current federal laws drawing the line at previous felony convictions, even while recognizing that this is an inexact measure. Indeed, I have serious doubts that the case will ever reach the Supreme Court, because the courts of appeals will probably all reach the same conclusion, meaning that there will be no circuit split to provoke cert.

Posted by: Bill Otis | May 12, 2008 9:48:14 AM

If gun possession is found to be a fundamental right, then the loss of that right would best be comparable to other fundamental rights lost due to conviction, like the 4th.

"California law provides that every prisoner eligible for release on state parole “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Cal. Penal Code Ann. §3067(a) (West 2000). We granted certiorari to decide whether a suspicionless search, conducted under the authority of this statute, violates the Constitution. We hold that it does not." (No. 04-9728) . See also UNITED STATES v. KNIGHTS .

However, once off of parole, the felon regains this right. What about pet ownership?

"Each court tested this condition against precedent assessing the relationship of the probation condition to the offense for which the defendant was convicted, the legality of the conduct regulated by the prohibition, and the relationship between the condition and future criminality.

"The conclusion of each of the courts at to the validity of a condition relating to all companion animals was the same. Each found the offense (possession of meth in Quintero, vehicle theft in Mosqueda) was not related to the ownership of animals." This link is to an animal rights site.

Most everyone can think of a good reason to limit the other person's rights. But the courts found the limit must be reasonably related to the offense even in probation/parole restrictions. If gun ownership is a fundamental right, like search and seizure, it should be regained once probation/parole is completed, like search and seizure. Possibly, if a fundamental right, that right should not be lost at all if not reasonably related to the crime (no apparent danger of violence with the gun).

However, the court must consider the government's civil liability if someone is permitted to own a gun then harms another, which appears to have strong influence on law and policy nowadays. Is that risk enough to overcome a fundamental right?

Posted by: George | May 12, 2008 11:02:30 AM

Another twist on this restriction of individual liberty which differs from many other post-conviction restrictions is that it applies to innocent third parties as well. After Suzy gets busted with her second personal possession joint, her husband can no longer keep and bear arms unless they are clearly out of her possession.

Posted by: Talithajd | May 12, 2008 12:17:43 PM

I wrote, "Burglary of a home is usually classified as 'nonviolent.'" John responded, "Kent, 'burglary of a home' is a 'crime of violence' under the guidelines, so your statement is false."

I said "usually," not "always." Burglary is classified as a property crime and not a violent crime in most contexts. It is so classified in the crime statistics we see all the time. It is not included in California's list of "violent" crimes. The fact that there is a broad (to put it mildly) definition of "violent" in one context does not render "false" my statement of what is the usual breakdown.

Rather than give the word "violent" a definition of artificial breadth, it is better to expand the underlying rule to include a range of felonies that are deemed more serious than others.

Sorry you didn't like my rhetorical flourish, Bruce. You can't please everybody. More substantively, I did not suggest drawing the felony/misdemeanor line in a different place (although that might be a good idea) but drawing the gun possession ban line in a different place, at some defined subset of felonies.

My main point remains unrefuted. Simple disagreement about where to draw the line is not a valid basis for challenging whether someone has the courage of his convictions.

Posted by: Kent Scheidegger | May 12, 2008 12:55:40 PM

Kent, yes it is. 1st Degree burglary is a strike under the 3 strikes laws.

Leandro Andrade

-- Third strike: Theft of nine children's videos in San Bernardino in 1995.

-- Previous strikes: Residential burglaries.

Since the 3-strikes law was sold THE means of preventing violent crime, burglary is violent. So says the SCOTUS too.

Posted by: George | May 12, 2008 3:44:04 PM

Apparently, the fact that a crime can be "violent" for some purposes of the law and "non-violent" for other purposes escapes George.

Posted by: federalist | May 12, 2008 4:14:41 PM

"Violent felony" for the purpose of California law is defined in Section 667.5(c) of the Penal Code. Burglary of a home when no one is home is not a violent felony as so defined.

George's premise that only violent felonies count as strikes for the purpose of the Three Strikes law is simply incorrect.

Posted by: Kent Scheidegger | May 12, 2008 5:32:46 PM

It didn't escape me that promoters of the 3-strikes law were lying.

Larry Painter is a previously convicted felon who pleaded guilty to firearm possession offenses in violation of 18 U.S.C. §§ 922(g)(1) and (3). The district court1 found that Painter had three prior violent felony convictions and imposed the minimum fifteen-year prison sentence mandated by 18 U.S.C. § 924(e)(1). Painter appeals, arguing that the court erred in ruling that a prior California burglary conviction was a violent felony as defined in 18 U.S.C. § 924(e)(2)(B). We conclude that the district court properly imposed the mandatory minimum fifteen-year sentence. This conclusion means that we need not address the additional Guidelines sentencing issues Painter raises on appeal. In addition, because the sentence is mandated by statute, it is free of error under the Supreme Court's recent decision in Booker v. United States, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Accordingly, we affirm.


The Issue in This Case. The prior conviction at issue resulted from Painter's guilty plea to a charge that he violated § 459 of the California Penal Code. That statute provides that "[e]very person who enters any house... store ... railroad car ... [or] vehicle ... when the doors are locked ... with intent to commit grand or petit larceny or any felony is guilty of burglary." This definition goes beyond generic burglary as defined in Taylor because it is not limited to unlawful or unprivileged entries into buildings. Thus, Painter's charging paper and the record of his guilty plea must be reviewed to determine whether he was convicted of generic burglary for purposes of the § 924(e) enhancement. [400 F.3d 1111]

Posted by: George | May 12, 2008 6:59:55 PM

Non sequitur

Posted by: Kent Scheidegger | May 12, 2008 9:31:01 PM

This has been a pretty lively line of discussion initiated by Doug, our chief catalyst for pondering things. Here is another wrinkle to the Possession of Firearm by a Felon , also implicating US v Rodriguez, argued Jan 7. Doug posted on this a couple days ago.

For a long time I have felt that Poss of Firearm by a Felon is not a substantive crime, and therefore cannot trigger ACCA enhancement or state habitual felon enhancement, because an essential element is the existence of a prior conviction.

If Scalia's apparent position in Rodriguez prevails, that an offense does not include the fact of a prior conviction, I think there will be some support on the Court for my belief. If you remove the prior conviction "element" from Possession of Firearm by Felon, there is no crime left. If recidivist offenses have passed double jeopardy muster for two hundred years because they are not crimes, Parke v Raley, then Poss of Firearm by a Felon is not a crime.

What is it? It is like a contempt proceeding because the def has violated a condition of his original conviction, not to possess a gun. The condition is implicitly put there by either the legislature or explictly by the judge. The jury trial right does not attach because it is not a criminal prosecution. So, a def can be punished for contempt but the charge cannot trigger another recidivist enhancement.


bruce cunningham

Posted by: bruce cunningham | May 12, 2008 10:46:20 PM

Non sequitur? We are talking about guns and prior offenses that can get some 15 years for mere possession of those guns. We are talking about burglary in California and if it is a violent crime. It was for this guy even though he entered a business in the day time during business hours. He walked right in the doors like everyone else does. No evidence of weapons or violence during this "burglary."

Most states, I think, would call that petty theft. For him it was a violent crime that got him 15 years.

The opinion is either on point or the government "got off on a technicality" (another catch phrase the Right used and the Left adopted that really means Down With Due Process. Remember when due process was a liberal thing?).

Either way, the guy is doing 15 for possession of a gun. Thanks to "truth in sentencing" he may have to do 85% of that 15.

But even if the SCOTUS finds gun ownership a fundamental right reinstated after parole or probation is completed, the states will just require lifetime parole or probation like is already happening in some cases.

Posted by: George | May 13, 2008 2:02:03 AM

bruce, interesting argument. What if the def is not on parole or probation? Then contempt of what?

Posted by: George | May 13, 2008 2:10:34 AM

George, the prohibition of gun possession is a condition of the original judgment, regardless of whether the person is on a formalized supervised probation or not. The judge says as part of the judgment, "thou shalt not possess a gun because of this conviction." If the def thereafter does possess a gun he has violated what the judge told him not to do. And he can be punished for that. Very little tweaking of the current practice would have to take place.

play out the logic of considering Possession of Firearm by A Felon as a substantive crime. That would necessarily mean that a prior conviction would be an element of a crime. That is contrary to two hundred years of jurisprudence, double jeopardy concepts and even Apprendi. Prior convictions are an exception to the apprendi rule, which means they are not elements of crime.

It is contrary to the establishd principle that prior convictions cannot be collaterally attacked, they must be challenged by a motion filed in the original proceeding. How can an element of a crime not be subject to challenge in the trial of the crime?

As many things in the criminal context, we have created scenarios over the last twenty or thirty years that make no coherent sense but they are just accepted because nobody wants to be perceivd as soft on crime. It simply makes no sense to me that Possession of Firearm by A Felon, which by definition is a recidivist offense, can trigger the application of another recidivist offense , such as ACCA. Read carefully the oral argument transcript in Rodriguez. All through there, I'm sure toDoug's delight, is extensive discussion of the offense offender dichotomy.

Think about this, take the concept out for a ride, play out actually trying a case, such as a murder case where the state has joined for trial a charge of possession of firearm by felon, (happens all the time) . The rule is that a prior conviction cannot be introduced into evidence against a nontestifying def. Because a prior conviction is an aspect of the defendant's character, not part of his conduct. Breyer just totally misses the boatin Rodriguez with his little hypo of the misbehaving child. Scalia sets him straight.

Bruce cunningham

Posted by: bruce cunningham | May 13, 2008 8:25:20 AM

Kent - in Virginia, burglary is classified as a violent crime in all circumstances. Obviously, states are different.

To answer one of Professor Berman's questions - yes, I do think that registration requirements including registration fees for firearms will be constitutional even assuming that the Court finds that there is a private 2nd Amendment right. The "well regulated militia" part is likely to prevail on measures short of gun confiscation and gun owners are going to be much more likely to embrace a registration system once the threat of the jack booted government thugs taking their guns is removed because it will protect their guns in case of threat or other loss.

I know that many of us do not like some of the draconian sentences given in gun cases - or that merely possessing a firearm can get some people 15 years in prison. It also seems unfair that a person convicted of a long ago non-violent felony can not use guns to hunt and perhaps provide food for their tables. However, even the mainstream gun rights advocates aren't pushing for felons (or the mentally ill) to have access to firearms. I do think that courts may require there to be a realistic possibility for the restoration of gun rights at least for non-violent felons - but beyond that, I do not see courts striking down prohibitions on felons possessing firearms.

Posted by: Zack | May 14, 2008 1:21:58 PM

Zack good post. I think that non violent felons would agree with you. I think there has to be a method that restores 2A rights to people who have truly changed and deserve second chances. I am one of those non violent felons( 1986 Marijuana). I should not be punished for the rest of my life. There are thousands of people just like me. Hopefully some relief comes with the heller case.

- Law abiding but still a FELON

Posted by: BS | May 14, 2008 6:25:59 PM

A conincidence reminded me of this thread:

"Defendant urges us to depart from Monge because Justice Thomas, one of the majority in Monge, has more recently indicated that he has reversed his position. n6 Justice Thomas has written that any factor that increases punishment, including a prior conviction, gives rise to constitutional trial protections. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 499-523, 147 L. Ed. 2d 435 [*34] (Apprendi) (conc. opn. of Thomas, J.).) "

Isn't that the same argument?

I'm not sure the governments will be able to draw a bright line between violent, potentially violent, and non-violent felons. Either it's a right, like the 4th Amendment, or it isn't. Another question. Under your argument, what is to keep the States from regulating gun control and giving 15 years for violation of the regulations, though calling it non-punitive? That would get around the issues Scalia and Thomas entertain. Or would it?

Posted by: George | May 14, 2008 10:51:29 PM

George, I don't think calling it non-punitive regulations would avoid the sixth amendment. Scalia doesn't care if its called Mary Jane. (Scalia concurring in Ring v Arizona.)

We are starting to wander afield, which is fine, but we started out talking about the recidivist offense of Poss by Felon, which is different from straight regulation of all persons.

My concern primarily is using a prior conviction as an element of a new crime, and in some cases using that recidivist charge to trigger application of a second recidivist enhancement, ACCA.

Posted by: bruce cunningham | May 14, 2008 11:43:10 PM

so is there any legal way too go hunting with my father ever im a ex-con for dui stoled kid sisters car still in drive way and got caught getting high ya bad luck i ve got been out many years hey pops is coming up on 70 dont know how much time i have left with him why do i have to be like the real bad guys not even in the same frame of mindyou people should get a clue guys with guns doing crimes ya pay attention guys with dui HELLO are probley not your problem loser allways need something too cry about OH well i guess i wont be going hunting see thats the differents CRY BABYS

Posted by: fred | Jul 24, 2008 12:01:17 AM

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