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April 30, 2010
"Convicted Felon Sues State Over Right To Bear Arms"
The title of this post is the headline of this notable press story sent to me by a helpful reader. Here is how the piece starts:A Franklin man is suing the state of Tennessee for not honoring a pardon allowing him the right to bear arms. David Scott Blackwell received a felony charge for drug possession in 1988, when he was 20 years old.
"I was young and dumb and moved from a small town in Mississippi and got involved with the wrong crowd in Atlanta," said Blackwell. "I'd sold some cocaine to an undercover officer. Boom - I went to prison, went to jail."
After serving his sentence and earning a bachelor's degree in nursing, the father said he petitioned the state of Georgia for a pardon, including the restoration of the right to bear arms, which was granted on August 11, 2003.
Blackwell ran into a problem in Tennessee. "Wanted to go hunting about two years ago and went to purchase a little .22 rifle for my son, and was denied," said Blackwell.
After two years of going back and forth with the Tennessee Bureau of Investigation and the Attorney General's office, Blackwell decided to file a declaratory relief lawsuit against the State of Tennessee, Governor Phil Bredesen and Attorney General Bob Cooper.
The lawsuit was filed in Davidson County Chancery Court on Thursday morning, and served to the state later that afternoon. Cooper's office had no comment on the lawsuit, but said they are in the process of reviewing it.
"It is just amazing to me that if you have a pardon, a full pardon that specifically gives you restoration of rights that the attorney general can say 'no, you're not a person. You have no rights. You don't have the same rights as anyone else,'" said Blackwell's attorney David Raybin.
"According to the attorney general, even if the governor of Tennessee pardoned a person in Tennessee, that wouldn't help them," continued Raybin. "Under the attorney general's opinion, there's no power on the planet that can restore his right to have a firearm and I reject that. I think that's wrong."
"We call it a Department of Corrections, not a Department of Punishment," said Blackwell. "We all want people to be corrected in their behavior, but there has to be that touchdown, that goal line that somebody can attain to become a citizen again."
A few related Second Amendment posts:
- Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit
- North Carolina Supreme Court finds state constitutional right for some felons to bear arms
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- Heller's impact on felon-in-possession crimes finally starting to generate attention
- Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
UPDATE: Thand to Blackwell's attorney David Raybin, I have a copy of the complaint filed in Blackwell v. Bredesen, which can now be downloaded here:
Download Blackwell_v_Bredesen_FILE_STAMP_copy
April 30, 2010 at 12:00 PM | Permalink
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Comments
I think there's a full, faith and credit issue here. If a Ga. pardon means that, under Ga. law, he never did it, then Tenn. may have to give it the same effect.
Posted by: federalist | Apr 30, 2010 12:12:53 PM
It seems to me it's an issue of TN statutory interpretation rather than full faith and credit. If TN wants to prohibit anyone ever convicted of a felony, even if pardoned, from possessing a handgun, it seems odd that another state could grant a positive right to possess a handgun in TN on the basis of the language in that state's pardons. FFC typically requires the F2 state to treat whatever happened in F1 just as if had been done in F2 -- that is, a judgment entered in GA for $10,000 is just as enforceable in TN as if it were a TN judgment. But it doesn't require F2 to treat the F1 judgment better than a native judgment just because that's how F1 would have done it. Here, TN is treating the GA pardon just like a TN pardon.
Also, the strong version of FFC applies to judgments of courts, not to executory acts such as pardons, marriages, etc.
Posted by: Jay | Apr 30, 2010 3:01:40 PM
horse hockey jay! he comitted his crime in GA he did his time in GA and got the full pardon in GA! at that point he was a free man with EVERY right ANY other american has. TN has no legal standing to change that without a new crime.
otherwise all those gays who got married in the 1 or 2 states that allow them JUST LOST it the min they crossed a state line and under your opinion it would be LEGAL.
Posted by: rodsmith | Apr 30, 2010 3:26:37 PM
We'll see Jay. FFC isn't just about judgments (it's unclear if there's a Ga. judgment any more, depending on what Ga. law is with respect to pardons). It's a thorny issue, and I'm glad I don't have to get to the bottom of it.
Posted by: federalist | Apr 30, 2010 4:37:02 PM
14th amendment
Posted by: Robert Hale | Apr 30, 2010 5:40:57 PM
Jay--FFC absolutely applies to marriages and divorces. The Supreme Court has already addressed whether a state is forced to recognize marriages or divorces performed in another state at least twice (I think one of the cases was Williams v. North Carolina), and they hold that marriages/divorces must be recognized unless they fall under the public policy exception.
Now, this is where the rub lies--if Tennessee indeed has a hypothetical statute like you suggest, then Tennessee may have a valid claim to invoke the public policy exception and refuse to recognize Blackwell's right to bear arms. That said, I sincerely doubt that Tennessee has such a statute, so I'm inclined to believe that any argument they raise against FFC is dead on arrival.
Posted by: Res ipsa | Apr 30, 2010 5:59:48 PM
Read harder, please. I didn't say FFC doesn't apply to marriages, divorces, and other public "executory" acts; I said (correctly) that it applies in its strongest (and basically un-overcomeable) form to judgments. (This is why adoptions by gay couples are enforceable even in strongly anti-gay states; adoptions, unlike marriages, are judgments. And rodsmith, the situation you suggest as absurd w/r/to gay marriages is, of course, exactly the situation that does exist...)
Anyway, there is a stronger public policy exception for non-judgment public acts. I suspect a pardon is an executory act rather than a judgment, although in some states it may be the latter. So, I'm skeptical that TN would be required to give effect to a pardon that went against the strong public policy of TN to bar convicted felons from possessing firearms. Regardless, as I said in the first part of my comment, I think it's not so much an issue of FFC as what the TN statute means as a matter of state law.
Posted by: Jay | Apr 30, 2010 8:09:47 PM
Regardless of the full faith and credit issue, it is clearly GA that decides the status of his prior felony conviction. If Ga had never convicted him then he wouldnt be under the Heller dicta that allows prohibition without violating the 2nd amendment. Once Ga decided that his felony was no longer operative, tenn. loses the ability to claim that he ever was or is a convicted felon. They might be able to argue that there is a legitimate state interest and this is the least restrictive means etc. but they dont get to argue that he is a convicted felon. If GA says that he isnt then he isnt. Could they argue that a person who had been convicted by a jury and then the appeals court overturned his conviction was a convicted felon? It is basically the same kind of argument.
Posted by: KRG def attny | May 3, 2010 12:23:07 PM
Anyway, there is a stronger public policy exception for non-judgment public acts. I suspect a pardon is an executory act rather than a judgment, although in some states it may be the latter. So, I'm skeptical that TN would be required to give effect to a pardon that went against the strong public policy of TN to bar convicted felons from possessing firearms. Regardless, as I said in the first part of my comment, I think it's not so much an issue of FFC as what the TN statute means as a matter of state law.
Posted by: Jordan Retro | Nov 14, 2010 1:40:19 AM
I am a regular person who had signifcant interest in this case because it deals with guns and civil rights issues. David lost the suit in a summary judgment on November 23, 2010. The Judge's order is 33 pages and is detailed. I don't have a PDF, but did go to the courthouse and photographed it.
http://www.georgiapacking.org/forum/viewtopic.php?f=2&t=46197
It is the third post down on that forum.
Posted by: kwikrnu | Dec 13, 2010 7:55:01 PM
