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September 14, 2009

"Citizens with Guns: Firearms & American Identity"

The title of this post is the title of a new article from Pratheepan Gulasekaram, which seems especially timely in light of the recent presence of gun-toting folks at various health-care town halls last month. Also, as the abstract reveals, the article should also be of interest to anyone concerned with the Heller court's suggestion that all felons can be categorically excluded from the Second Amendment:

This article examines the relationship between firearms and American citizenship, both as a matter of legal status and as a matter of perceived American identity.  To do so, this article will explore the link between guns and citizenship as textual matter, a historical and legal narrative, and a symbolic bond.  First, this paper will examine Heller’s largely unnoticed contention that the Second Amendment benefits only citizens.  Such an inquiry requires a comparative analysis of other provisions of the constitution that similarly enumerate the right of “the people.”  In addition, this article analyzes the historical and legal connection between the right to bear arms and status citizenship, noting the relationship between arms-bearing, racialized conceptions of U.S. nationality, and increasing immigration throughout the country’s history.  To complete the exploration, this paper will also consider the symbolic importance of gun-toting in the American legal and cultural landscape.  Here, the article dissects the manner in which gun-related incidents have been used to code some individuals and circumstances as part of the American narrative, while others are coded as foreign and anathema to the American identity.

September 14, 2009 at 12:00 PM | Permalink


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There is a problem in comparing the treatment of felons today, when just about any crime can be charged as a felony, and felons of Founding days, when the crimes which were felonies were the basics: burglary, arson, rape, robbery, kidnapping, murder/homicide, sodomy, sedition and treason.

Today, the criminal code de-rights (in all sorts of ways, not just vis-a-vis firearms) the Martha Stewarts of this world (who had the misfortune of sticking to a description of a version of reality not the same as that the agents of the government adhered to), and not just the true, violent criminals who kill, rape, etc.

If we want to address felon de-rightings (collateral consequences of felnoy convictions), we need to make that distinction in the way we address the issue, too.

Posted by: scribe | Sep 14, 2009 3:21:17 PM

Very well said Scribe. I am not a lawyer so excuse me for asking but what does it take in the Federal Courts to constitute a felony? Any sentence over 12 months? There are tens of thousands of Martha Stewarts out there who are non-violent first time offenders but who, unlike Martha, have no merchandising empire to fall back on. They are disenfranchised in too many ways to list but most critically they are prevented from being able to secure meaningful employment. Loss of firearms rights is only a small consequence compared to the others

Many of these felons are white collar offenders like Martha but many more are those caught up in drug related conspiracy offenses and with both types many are often so far out on the periphery of the "crime" that the only benefit to anyone is to carve another notch on the gun butt of some overzealous, less than honorable (http://bit.ly/2tuwi) AUSA. Anyone can be and many are charged with conspiracy for no other reason and when the AUSA uses the "Awesome Power" of, the unlimited resources of and the threat of the "Full Weight" of the United States Government under the current Sentencing Guidelines, most just can't afford the cost in dollars and risk to fight and make it easy by taking a plea agreement that they know is in error and so does the Government. But hey, the AUSA notches another conviction, the defendant goes to prison and we taxpayers "gladly" foot the bill right? I liken their actions to the "Body Count" method of keeping score back in the day in Vietnam. (anybody old enough to remember that?) The only thing that counted was high numbers. How didn't matter as long as the number was high. In most state courts these offenses would be handled through pre-trial intervention or other alternatives but of course in our federal "justice" system none of these options are available.

This has got to be the most Over-Criminalized and Over-Federalized justice system on the planet and the Subcommittee on Crime, Terrorism, and Homeland Security under Congressman Bobby Scott recently held a hearing on just that issue. I challenge you to watch the video and read the transcript of the hearing, particularly the testimony of Mrs. Kathy Norris and Mr. Krister Evertson for classic examples of the truth of this statement and that there must be legislation passed to give these people real opportunity to reclaim their lives and return to society as productive members. The collateral consequences of felony convictions are tragic and there is no such thing, under current law, as having "paid their debt". They, like Martha and the others, are no threat to anyone yet we continue to waste countless billions locking them up when there are alternatives and H.R. 1529 the “Second Chance for Ex-Offenders Act of 2009” is legislation that should be passed immediately.

The fact of the matter is no one in congress is really interested in fairness or justice or reform. The Conservatives make no bones about their "tough on crime" lock 'em up, throw away the key and damn the expense while the liberals pose and posture, hold hearings, recommend further study, (whatever happened to the "Smart on Crime": "Recommendations for the Next Administration and Congress", the study facilitated by the Constitution Project on behalf of several organizations and individuals) and promise that if re-elected just one more term we will surely get it done this time. Witness Charlie (what? me not pay my taxes) Rangel's history with H.R. 1529. Eight years, six versions, many co-sponsors, until the current version, and it never got out of committee. Old Charlie, who may soon need it, has now apparently abandoned this legislation at a time when his crowd is now in power and everyone is calling for reform. Go figure.

Posted by: HadEnough | Sep 14, 2009 9:10:20 PM

HadEnough--Since you asked, a felony is any offense punishable by a term of over one year. Thus, a person could be sentenced to probation but still be a convicted felon because his underlying offense was punishable by more than a year.

Posted by: Res ipsa | Sep 15, 2009 11:38:58 AM

Thanks Res and that is exactly the point. I know personally of a 20 something young lady who was caught up in a "conspiracy" net as I described above. Her sentence was 12 months probation but she is still condemed to the lifetime of collateral consequences of the conviction. But the AUA got another notch. Justice?

Posted by: HadEnough | Sep 15, 2009 1:12:07 PM

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