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July 20, 2008

Another review of felon efforts to assert Second Amendment rights

The AP has this new piece, headlined "Guns ruling spawns legal challenges by felons," examining one of my favorite post-Heller topics.  Here are a few excerpts:

[C]riminal defense lawyers say the high court's decision means federal laws designed to keep guns out of the hands of people convicted of felonies and crimes of domestic violence are unconstitutional as long as the weapons are needed for self-defense.

So far, federal judges uniformly have agreed these restrictions are unchanged by the Supreme Court's landmark interpretation of the Second Amendment....

People on both sides of the gun control issue say they expect numerous attacks against local, state and federal laws based on the high court's 5-4 ruling that struck down the District of Columbia's ban on handguns. The opinion by Justice Antonin Scalia also suggested, however, that many gun control measures could remain in place....

At the Justice Department, spokesman Erik Ablin said the agency's lawyers "will continue to defend vigorously the constitutionality, under the Second Amendment, of all federal firearms laws and will respond to particular challenges in court."...

Eugene Volokh, a law professor at the University of California, Los Angeles, who has written about gun rights ... and some gun rights proponents said people convicted of crimes are less likely to succeed in their challenges. "Many felons may need self defense more than you and I, but the government has extra justification for limiting that right because they have proven themselves to be untrustworthy," Volokh said....

The Supreme Court has a case on its calendar for the fall that could indicate whether the justices are inclined to expand their ruling.  In United States v. Hayes, the government is asking the court to reinstate a conviction for possession of a gun for someone previously convicted of a domestic violence crime.

As I have explained in many prior posts, I am troubled by Eugene Volokh's notion that the government may properly restrict the reach of enumerated constitutional rights on the theory that some class of persons are "untrustworthy."  Should First Amendment rights to speech and assembly and worship be regularly restricted by government to those persons considered "untrustworthy," even in situations where certain persons may have a special need to be able to exercise a right even more than others?

Indeed, Eugene's quote reveals the true vision of Second Amendment rights (and other rights) that most seem to embrace: vigorous support and advocacy of rights for those individuals we like and trust, ready rejection of rights for those individuals we like and/or distrust.  So much for equal rights for all.

Some related Heller posts:

July 20, 2008 at 01:53 PM | Permalink


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Tracked on Sep 16, 2009 8:50:40 AM




Section 922(g)(9) of Title 18, United States Code, makes it a crime for any person convicted of a "misdemeanor crime of domestic violence" to possess a firearm. The question presented is whether, to qualify as a "misdemeanor crime of domestic violence" under 18 U.S.C. 921(a)(33)(A) (2000 & Supp. V 2005), an offense must have as an element a domestic relationship between the offender and the victim.


The opinion of the court of appeals (Pet. App. 1a-32a) is reported at 482 F.3d 749. The order of the district court denying respondent's motion to dismiss the indictment (Pet. App. 33a-39a) is reported at 377 F. Supp. 2d 540.

Posted by: | Jul 20, 2008 2:46:32 PM

I have previously commented on this issue and suggested that post-Heller restrictions on felon firearm ownership can be justified by the same legal tradition that supports felon disenfranchisement - a tradition that treats the felon as having been cast out of regular society. Under this tradition the treatment of felons can be thought of as a type of collateral punishment that society exacts. Felons lose their guns and their vote (not to mention their ability to obtain all kinds of professional licensing and to participate in highly regulated businesses (i.e. liquor licenses)).

Let me offer another rationale. In Griffin v. Wisconsin, 483 U.S. 868 (1987) the Court ruled that probationers could be subject to searches of their home as part of a regulation governing probation supervision. The Court required no specific facts to support the particular search. So, the Court implicitly found it acceptable that after conviction the person had diminished Fourth Amendment rights because of the state's compelling need to supervise probationers.

I won't pretend that this is an exact corollary to firearm prohibitions. They last for life and don't distinguish between types of felony convictions (except for a few felonies which don't disqualify under federal law).

Felons shouldn't lose free speech rights because there is no special threat to the community from their speech. Therefore is no governmental interest in controlling felon speech. The same can't be said about guns.

Posted by: Alan O | Jul 20, 2008 4:29:26 PM

"Felons shouldn't lose free speech rights because there is no special threat to the community from their speech. Therefore is no governmental interest in controlling felon speech. The same can't be said about guns."

Yes it can. There is no special threat to the community from Scooter Libby owning a gun to protect his family.

Posted by: John | Jul 20, 2008 4:35:40 PM

As I have commented before, laws prohibiting felons from possessing firearms are based on a stereotyped or oversimplified conception of felons as a class. Some may be dangerous, others not. One size does not fit all.

Posted by: Tom McGee | Jul 20, 2008 7:41:18 PM

Something that I think is missing from the many discussions on this issue is the impact of various state "structured" sentencing schemes which have completely obliterated the traditional distinction between felonies and misdemeanors. For example, I represent someone for possessing burned out residue of cocaine in a pipe, which was so miniscule that the quantity could not be weighed. He was convicted of a Class I felony, which is the least severe class on the books. A person convicted of a Class I felony who has no prior record cannot be given active time. The sentence must be a probationary sentence.

Traditionally, felonies were "villainies" and were defined under the common law as crimes which could carry imprisonment in the state penitentiary rather than the local jail. Usually for more than two years.

So, now folks are being convicted of felonies which are much less serious than some misdemeanors, like the NC misdemeanors of Assault with a Deadly Weapon or Going Armed to the Terror of the People, and are prohibited from possessing a gun for life.

Makes no sense.

Bruce Cunningham

Posted by: | Jul 20, 2008 9:50:50 PM

Bruce is correct the confusion between misdemeanors and felonies can cause serious problems at reentry to society. Many opportunities for employment are not open to felons and their federal benefits can be terminated.

In Iowa we have four levels of felonies plus other felonies (primarily charges made under the old criminal code) and three levels of misdemeanors which have been confounded by scheduled and nonscheduled variants. We have prison inmates serving sentences in prison where the most serious charge is one of the two upper level misdemeanors. Does the fact that they served their sentence in prison mean they are felons?

They are considering revising the Iowa criminal code and the staff has prepared a report that covers some of these problems. There are cases where a single statute can have five different fines and some of the fines are in violation of other statutes. The also gave some examples where the severity of the offense described by a single statute depended on circumstances (some people think that is a violation of the Iowa constitution). The staff told the legislators there is no right answer in such cases and asked for instructions on how to deal with such problems?

Posted by: John Neff | Jul 21, 2008 8:32:55 AM

Remember the old days when thinking of a Felon the first thing that came to mind was murder, rape, armed robbery. Not the case anymore. I agree with Tom that "ONE SIZE DOES NOT FIT ALL".
A lot of this debate would go away if Congress would once again allow the ATF to perform background checks to reinstate firearm rights. Some states allow firearm rights after a certain amount of time has passed for non violent felons. This should be the case in all states.

Posted by: BS | Jul 21, 2008 9:59:56 AM

Someone should inform Eugene Volokh that the government has classified at least some felons trustworthy by inacting 18 U.S.C. 921 (a) (20).

Posted by: Paul | Jul 21, 2008 10:14:09 AM

"Some states allow firearm rights after a certain amount of time has passed for non violent felons. This should be the case in all states."

I think that congress should amend 18 U.S.C. 921 (a) (20) so that if the state restores firearm rights, that alone should be enough under federal law.

Posted by: Paul | Jul 21, 2008 10:30:39 AM

"Many felons may need self defense more than you and I, but the government has extra justification for limiting that right because they have proven themselves to be untrustworthy," Volokh said....

Untrustworthy? Are you kidding me. Is Volokh aware that we have Felons serving in our armed services? Is Volokh aware that we have many Congressmen with criminal behavior both before/after being elected? In fact we have had Presidents with criminal behavior. I wonder if Volkh thinks that a 21 year old person convicted of a non violent felony is a person who should be treated as untrustworthy for life? Mr Volokhs comments are untrustworthy.

Posted by: Tarheel | Jul 21, 2008 1:06:24 PM

I'm with Alan O. Actually, I think the case for relinquishing second amendment rights for felons is much stronger than the case for relinquishing the right to vote.

Posted by: Orin Kerr | Jul 21, 2008 3:51:17 PM

Basing the argument on "self defense" is going to be a loser for convicted felons - Volokh's statement is inane and offensive, but he is right that the government is going to win those cases albeit for the wrong reason. The right reason is that placing the Second Amendment right based on self defense in the home means that if the government allows convicted felons other forms of self defense in the home (such as non-lethal stun weapons - as well as burglar alarms, barking dogs, large dogs, keeping an outside light on, etc). that the government will be able to argue that while they might be denied one form of self defense, they still have that right through undeniably less-dangerous means.

Virginia's law already allows convicted felons to possess stun weapons in their homes (outside of the homes, they are apparently prohibited from having such weapons). Other states will likely do the same thing, if they haven't already.

Even if convicted felons were allowed to possess weapons in their home and use them for self defense, they would do so at their own peril - they shoot an intruder, and claim self defense and perhaps the jury believes them or perhaps the jury says "he was a convicted felon, so I bet he shot the guy then staged the burglary to claim self defense." Don't think that juries won't think something like that.

Posted by: Zack | Jul 21, 2008 4:02:38 PM

19 USC 922 g8 no proof requied in state court of Cal

U.S. Supreme Court
LEWIS v. UNITED STATES, 445 U.S. 55 (1980)
445 U.S. 55
Even though petitioner's extant prior state-court felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U.S. 335 , it could properly be used as a predicate for his subsequent conviction for possession of a firearm in violation of 1202 (a) (1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 60-68. by a Voice Vote Senator Joe Biden bill
US V Larry W. Campbell cr s 03 0483 wbs gghp
USC 922G8 your congress at work AND YOUR COURTS

My understanding , which is not from personal experience at all, but just from talking with Judges who do these ,is that they issues hundred or thousands of these

and that all the movants have to do is come in and say basically I’M afraid of my boyfriend or my husband , and they get this order, Now, is there more required that.

Court record transcript of Jan 7th 2005 page 155 to 167
Jan 7th 2005 page 169 Court “ But what is your understanding of what has to be proven at the hearing, other than the fact that the women is afraid
Of him/
Attorney Smith government, the statute does not speak to that, it gives the judge discretion

Posted by: larry | Oct 11, 2008 8:08:49 PM

Can I have a stun gun as a felon in Virginia ?

Posted by: Waterfield | Jan 11, 2009 11:36:46 AM

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