« Third Circuit finds Child Online Protection Act facially unconstitutional | Main | What does the future hold for the US Sentencing Commission? »

July 22, 2008

An argument against — and for!— felon gun rights

Today's New York Post has this interesting commentary headlined "GUN RIGHTS FOR FELONS?".  The piece starts with an originalist argument against felons having Second Amendment rights after Heller, but then concludes by asserting that some felons should have Second Amendment rights after Heller:

The amendment guarantees a "right of the people to keep and bear arms" — and the Founding Fathers did not think "the people" included criminals.  Under the law as they knew it, felons were "civilly dead": They had no legal rights whatever.  All their property (including guns) was forfeit.  (Moreover, they were subject to execution — which made their rights irrelevant.)

In all societies recognizing a right to arms, that right was limited to "the virtuous citizenry." In this, as in much else, our Founders looked back to the ancient Greek and Roman republics. There, every free man was armed so as to be prepared both to defend his family against criminals and to man the city walls in immediate response to the tocsin's warning of approaching enemies. Thus did each good citizen commit himself to the fulfillment of both his private and his public responsibilities.

In sum, the constitutional right to arms simply does not extend to people convicted of serious criminal offenses.  By "serious," I refer to the early common law — under which felonies were real wrongs like rape, robbery and murder.

Unfortunately, modern legislatures have added a host of trivial felonies.  For instance, in California an 18-year-old girl who has oral sex with her 17-year-old boyfriend has committed a felony.  The courts should rule that conviction of such a trivial felony can't deprive such a "felon" of her right to arms.

But the fact remains that people who have been convicted of serious criminal offenses have thereby lost their rights under the Second Amendment.  They are subject to our laws against felons possessing firearms.

Because I am not a Second Amendment or even a constitutional historian, I cannot directly address the originalist argument made here for categorically depriving all those convicted of "serious criminal offenses" of their Second Amendment rights.  But I can attest to the fact that lots of seemingly less serious criminal offenses — such as the crimes federal crimes committed by Scooter Libby and Martha Stewart and 'Lil Kim and Marion Jones and a host of state crimes — under current law make a person a felon completely prohibited under federal law from ever possessing a gun for self defense in the home.  It seems that the author of the Post commentary would support arguments that those convicted of whatever felonies are not "serious" ought to still be able to exercise Second Amendment rights.

Some related Heller posts:

July 22, 2008 at 03:50 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference An argument against — and for!— felon gun rights:


Here's an interesting tidbit - Congress did already exempt one type of felon from the Federal felon-in-possession firearms prohibition. 18 U.S.C. §921(20) states that a disqualifying felony "does not include - (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."

The Sherman Antitrust Act, 15 U.S.C. §1 -- the primary Federal felony exempted by §921(20) from the firearms felon-in-possession prohibition -- currently can by no means be characterized as a "trivial felony." The maximum penalty upon conviction for an individual: up to 10 years imprisonment and a $1 million fine. The average jail sentence actually imposed on antitrust offenders in fiscal 2007 was 31 months, according to DOJ's public pronouncements.

Thus, to the extent Congress might be accused of applying an objective standard in exempting "business practice" felonies such as the Sherman Act from felon-in-possession prohibitions, it appears severity of the offense was not the criteria used.

Posted by: zippypinhead | Jul 22, 2008 8:02:18 PM

Well, people who commit "business practice" felonies are the right kind of felons. You see, they can still be trusted to use their guns responsibility to protect themselves from black people.

Posted by: DK | Jul 22, 2008 9:33:05 PM

By this logic, the only people who have the right to be secure in their person, home, papers, and effects, and the only people who are entitled to a fair trial, and the only people who are entitled to due process, and the only people who are entitled to equal protection under the law, and the only people who are entitled to confront the witnesses against them and the only people entitled to compulsory process are virtuous law abiding, non-criminals.

Protection from the government (also known as "rights") means protecting those accused and those convicted of crimes. Because whenever the government is going to take away our freedom, it will be under the guise of preventing and protecting us from crime.

Posted by: bruce | Jul 23, 2008 5:05:46 AM

"Business practice" felonies are far worse than say someone who got caught with a little marijuana. "Business Practice" felons are pure and simple thieves and are no better than a drug dealer!!

Posted by: BS | Jul 23, 2008 7:50:54 AM

I am personally very alarmed that someone who has committed Sherman Act violations can run around with guns given that people who commit Sherman Act violations tend to be the type of people who will sell their grandmother to make a buck.

Interesting that it looks like securities violations do result in disarmament - maybe because sometimes the insider trading is done by a little person such as a call girl.

Posted by: Zack | Jul 23, 2008 10:41:03 AM

Ted Kennedy's car has killed more people than my guns !

Posted by: BS | Jul 23, 2008 12:21:30 PM

Here's the funniest passage from the article:

"Federal and state laws against convicted felons having guns are still valid: The Second Amendment protects a right of self-defense for "good" people only."

The premise of Kates argument is that felons were "civily dead" at common law and had "no legal rights whatsoever." (they're lucky they haven't been executed!). This premise is both faulty and troubling. I'm not aware of any case that holds that a felon may lose a constitutional right (the right to speech, or the right to have a jury trial, for example) simply because they are a felon. Nor would I want to live in a country that took away fundamental rights in this manner. One, of course, could argue that the 2nd amendment right is less fundamental than other rights - but I don't think Kates believes that.

Also, if "good character" is a basis for stripping people of their gun rights, why limit this to felony convictions? It seems that the State would have the right, for example, to impose "character and fitness" exams before allowing people to purchase guns. I don't think this is the result the NRA wants.

The really odd interesting about Kates' argument, however, is that he limits felon gun prohibitions to "serious" felonies that were recognized at common law (rape, robbery, and murder are his examples). He says that other, "trivial" felonies should not lead to the loss of 2nd amendment rights. As a defense lawyer, I love this result. Many (most?) people who have felony convictions have not been convicted of those sorts of violent offenses. Many of them were convicted of drug offenses, which weren't even crimes at commnon law. Kates doesn't seem to realize how broadly his exception would apply.

Posted by: rn | Jul 23, 2008 12:25:58 PM

It is true that "under the law as they knew it, felons were 'civilly dead': They had no legal rights whatever. All their property (including guns) was forfeit."

However, upon completion of sentence, a felon was no longer "civilly dead", and ALL of his or her legal rights were restored. In fact, some states issued firearms to felons upon release from prison, knowing that possession of a firearm was essential to their livelihood.

I am a convicted felon. All of my rights have been restored except firearm possession. I am considered of sound mind sufficient to vote in federal and state elections and to hold public office. I am an active member in my church, a scout leader, owner of multiple businesses, holder of various professional licenses, father of one, step-father of four, tax payer, and a thousand other things.

The laws against felon possession of firearms are flawed and unconstitutional.

Posted by: NTH | Nov 22, 2008 9:30:34 PM

It depends whether it was a violent felony or not. I am a convicted felon. I made false statements on a loan application. Should that have any bearing whatsoever on my right to own a firearm?

Posted by: Jonathan Richards Ex Federal Prison Inmate | Nov 24, 2008 7:22:23 AM

My buddy got caught in possession of several types of marijuana when he was sixteen years old. The quantity totaled under a quarter ounce. He was charged with intent to sell, though he had no intent to sell. His parents and attorney convinced him to plead guilty as all he would get was a little fine, a little community service, and probation. If he didn't plea guilty they said he could do prison time in an adult prison, even though he was only 16 years old.

At the time he thought he was getting a slap on the wrist. However, for the rest of his life he is a felon by law and cannot legally vote or protect his family or his property against predators with firearms. The war on drugs has ruined many lives and is entirely unconstitutional. In the days of our founding fathers I seriously doubt they would have executed or destroyed the life of someone because they had a little marijuana.

Posted by: magic | Jan 1, 2009 12:11:07 AM

I know it is a lot to the left, but I don't think the government has any right in making exceptions to our rights. They assume this and that. They had cannons when it was written and you don't see the "right to bear arms..with the exception of cannons" in there anywhere.

The fed gov. is doing precisley what the founding fathers had reconveened for, they are ruling the states with an iron hand. The states are for the most part doing the same by making a debauchery of the public and our rights. Our politicians live by what they say not what the do. I frown to say it but modern america is starting to look like medieval europe.

oh well i committed some duis so now i will have to pay for it the rest of my life... at least i'm not in jail

Posted by: sl | Jan 10, 2009 2:46:34 AM

The right to bear arms shall not be infringed upon. PERIOD. there is no exception to this rule. Convicted felons and those who haven't been convicted can stand together against a tyrannical government or to defend themselves. To make felons out to be somewhat lesser of a citizen is disgusting. All of the patriots that rebelled against England were considered traitors and if caught these acts were punishable by death, did this make them any less of a patriot? For those of you that enjoy putting restrictions on Constitutional rights, don't cry when it's you or your children that could have been saved by an armed citizen that happens to have been convicted of a felony.
1. The Constitution and the Amendments included therein are supposed to be "the Supreme Law of the Land", I therefore conclude that conviction under a state criminal law DOES NOT forfeit 2nd Amendment Constitutional rights.
2. It is a right, NOT a privilege. Rights cannot be taken away, privileges may, such as a driving privilege or license.
3. If state criminal punishment and the Constitution then begin to conflict or seem contrary to one another, the state law or punishment is then to be unconstitutional and illegal.
4. We are being brought down the road to destruction, and this ideology of compromising rights or reading into the Constitution that they are only privileges is one of the major reasons.
5. Your (elected) leaders are sworn to protect and defend this Constitution, they haven't. Which is the more serious threat, the felon that violated a state criminal law, or your representatives that are in constant violation of the Supreme Law of the Land?
You should think long and hard on this one.

Posted by: mdbfl | May 3, 2009 7:22:32 PM

I am a convicted felon. I was convicted in 1991 and served 4 years of probation as the court ordered. I have not even been arrested or had a traffic violation in the last 15 years. IMO I have FULLY PAID MY DEBT and have proven by my past record that I am fully rehabilitated. The restrictions placed on convicted felons in in fact a discrimination. It's unconstitutional and there is no argument that makes it constitutional.

If the law were written where a felon no matter their crimes had a chance to redeem themselves such as a no arrest record for a period of 5 or even 10 years and thereafter have all of their rights restored then the law could be considered as fair and constitutional.

I am an active member in my church, I own a business, I have obtained my MBA, and I pay taxes, but yet I am a 2nd class citizen because of an unconstitutional law.

If a person is convicted of manslaughter because they ran someone down in their car they can not own a firearm but they can own a car and they can drive again. HOW FLAWED IS THAT?

Those that stand back and stub their noses to gun ownership by felons need to consider those of us that have redeeming qualities. I agree that a career criminal should have this restriction, but past felons that have a clean record for a long period of time should by all fairness have all of their rights restored.

I am only glad that when I come to be judged by God that he will not look upon me as man does!

Posted by: John G | Jul 14, 2009 3:57:31 PM

I am also an ex-felon (just released in Feb. 09). I was a law enforcement officer for 13 years, I have been a missionary, and I am a college graduate. I was convicted of a non-violent felony for which I served 45 months. Why can I not own a firearm? We just had three of our calves eaten by some kind of predator, but I cannot own a firearm to protect my livestock. What if one of my kids is attacked? Am I supposed to just yell at whatever it is or call the sherrif's office, which is 20 minutes away? What about my WIFE's 2nd amendment rights? We can't even have HER guns in the home. Why should a guy who cheats on his taxes or dumps tires in a lake, or even possesses drugs never be allowed again to own a firearm? This is stupid, and Kate's article was stupid. The vast majority of felonies committed in this country are non-violent. Of course no one wants a rapist or murderer to have a firearm, but that's why there should be a restoration process. One exists, but ATF won't process the applications because of "funding". The only other way is to get a presidential pardon. You are as likely to win the lottery.

Posted by: Norman P | Jul 22, 2009 7:58:13 PM

Driving a motore vehicle is not a priviledge as people are being led to believe.The courts have ruled many times it is a right.One case for example.Thompson V. Smith,154 SE 579.The whole Driving is a priviledge thing is a huge hoax,a lie to the american people.Controll and financial gain. I am a cook with no education,but I do have a very big interest in rights and the constitution.

Posted by: Robin Jorden | Nov 30, 2010 12:04:00 PM

The second ammendment specifically says shall not be infringed.So simple a child could understand.Opinion needs to be left out.You cannot take rights away for any reason.Only priviledges can be taken.When talking about the constitution we need to first learn the diference between rights and priviledges,the constitution is made up of rights that cannot legally be taken,it is the supreme law of the land.The courts have taken an oath to uphold and protect,when they fail to do so it is a crime.

Posted by: Robin Jorden | Nov 30, 2010 12:17:05 PM

Nowhere in our constitution does it state that those convicted of any felony crimes are deprived from exercising their 2nd amendment.I too have served 4 1/2 yrs in a fed prison for exercising my unalienable rights,fundamental and or god given rights,endowed by our creator "if you so choose to believe in god" from doing what is given to us naturally. What ever happen to paying our debt to society, our dues? If those people that are feared to be such a threat to the general public, giving your opinion, then why not complain to those that are in charge of our safety of the general public.Here is my argument,if we are perceived as such a threat then why in the hell would you tolerate our release back into society? Also,to make any law passed through legislation legal,it must first be supported by our constitution,if it does not coincide with our CONTRACT, then legally change it, it takes 3/4 states that make up our great Nation to alter our CONTRACT.and if not,it is ILLEGAL, I MUST STAND UP TO OPPRESSION,I'M SORRY PEOPLE BUT I MUST MAKE A STAND FOR WHAT I INTERPRET AS OUR CONSTITUTIONAL RIGHTS.SO HELP ME GOD... WE THE PEOPLE...

Posted by: Jose A.Rodriguez | Apr 15, 2012 11:05:26 PM


Posted by: Jose A.Rodriguez | Apr 15, 2012 11:06:50 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB