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March 17, 2009

"Why Can’t Martha Stewart Have a Gun?"

The title of this post is the title of a new article by C. Kevin Marshall that will appear the Spring 2009 issue of the Harvard Journal of Law and Public PolicyA helpful reader sent me a copy of the article, perhaps after noticing this post I wrote way back in January 2008 questioning the justification for asserting that Martha Stewart and Scooter Libby and other non-violent felons are completely and forever excluded from the Second Amendment's protection.  I have secured permission to post this new article, which starts this way:

In 2004, domestic diva Martha Stewart was convicted of obstruction of justice, making false statements, and two counts of conspiracy in connection with dubious stock transactions.  Although sentenced to only five months in jail plus a period of supervised release, she risked a much harsher punishment.  Because she was convicted of a crime punishable by more than a year in prison, federal law bans her from having any gun.  Her ban is for life, unless the Attorney General lifts the disability — a because Congress regularly bars the Bureau of Alcohol, Tobacco, Firearms, and Explosives from spending any money to review petitions to lift firearms disabilities.

Is the public safer now that Martha Stewart is completely and permanently disarmed?  More to the point, how could such a ban be constitutional, now that the Supreme Court, in District of Columbia v. Heller, not only has confirmed that the Second Amendment secures a personal right to keep and bear arms, but also has emphasized its historical tie to the right of self-defense?

Here is how Mr. Marshall concludes his exploration of this interesting and important post-Heller topic:

Research and analysis need to replace dicta and assertions on this topic.  Especially after Heller, there is much room for further thinking and discussion.  Yet wherever the constitutional line may be, it is difficult to see the justification for the complete lifetime ban for all felons that federal law has imposed only since 1968.  And among the various lines that the Second Amendment might draw, it is at least curious how Martha Stewart could merit anyone’s concern.

Download Marshall article on 2A and felon gun possession

Some related Second Amendment posts:

March 17, 2009 at 04:41 PM | Permalink


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I can't say that I think barring felons from having guns is a bad idea, because even a non-violent felony suggests some sort of defect in moral reasoning. And you would expect that folks who have defects in some areas may frequently have defects in others, even if for whatever reason they haven't come to light in the criminal justice system.

Posted by: anonymous | Mar 2, 2016 2:46:49 PM

Do you really think, anonymous, that Martha Stewart has a "defect in moral reasoning."

Posted by: Doug B. | Mar 2, 2016 6:13:55 PM

"Defect in moral reasoning?" Our criminal justice system is PLAGUED with men and women whose lives have been destroyed by prosecutorial misconduct, wrongful convictions and disparate sentencing for underrepresented portions of the population. These men and women, get up with dignity and grace, dust themselves off and continue to move forward. In many instances the convictions are decades old and you think that it is sound reasoning to suggest that THEY have the defect in moral reasoning? Ha!

Posted by: Dawn McCloud | May 30, 2018 8:45:26 AM

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