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Thursday, June 26, 2008

Criminal Implications of Heller

As usual Doug Berman has an interesting sentencing take on the day's criminal law news.  Today he considers the implications of the Court recognizing a right to bear arms to those currently incarcerated for gun crimes.  Here's an excerpt.

As regular readers know, I think all these assertions add up to making constitutionally questionable the threat of severe sentences on felons in possession of firearms.  After all, felons are Americans with a need to protect themselves and their families through keeping guns in their home.  And yet, all felons (even non-violent ones like Lewis Libby and Martha Stewart) face the threat of 10 years in federal prison for just possessing a firearm. 

Nevertheless, the majority opinion boldly and baldly asserts that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Slip op. at 54.) 

Really?  How can that (unjustified and unsupported) dicta be squared with all that has been said before?  To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry "offers no way to harmonize its conflicting pronouncements."  Time and litigation will tell if holdings or dicta end up dominating the application of the Second Amendment in future cases.

Posted by Sam Kamin on June 26, 2008 at 05:10 PM | Permalink


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Ok, arguable point, albeit reaching for excuses though. One is only considered a minor for 18 years. After that it is assumed that all of them have learned enough through school and life experiences to be considered competent. So, lets be reasonable and say that after an acceptable amount of time and verifiable rehabilitation that a felon can again learn from his/her life experiences and also be considered competent to handle their own affairs and have all the same rights as any other American. Now, the acceptable amount of time will be up for debate. If you take the minor, they have to reach the age of 18, the first 8 years are spent learning to walk, talk, write their name ect. The next 10 years is when they will learn and understand right from wrong and how to make and deal with the consequences of discions they will be making for the rest of their lives. Well it looks like 10 years would be a good round number. Now of course unlike the minor that reaches 18 and automatically is given all their rights the felon will have to go through a rigorous interview, background check and have numerous supporters and backing from non-felon piers in order to regain their rights. All that being said, that would be a lot of work, time and money in itself and well worth the outcome for a rehabilitated felon that has earned all his/her rights back. Who thinks they have the right to deny the rights of others and who gave them to you?

Posted by: Jack | Jun 27, 2008 5:10:15 PM

I'll take a stab at it.

Perhaps the reason we deny felons the right to vote and own firearms is akin to the reason we deny minors those same rights: because society doesn't trust them to exercise their rights carefully/thoughtfully-- minors because of a presumed lack of mental development/education; felons because of a demonstrated lack of civility evidenced by the commission of one of the crimes the state felt was heinous enough to deem felonious. Sure, there may be rehabilitated felons and bright 17-year-olds who are perfectly capable of exercising these rights responsibly, but it's more expedient to just have a blanket denial.

I'm not sure this has any basis in the Constitution, but it seems logical.

Posted by: Paul Washington | Jun 27, 2008 2:16:38 PM

All right, here is the problem; too many people with to much authority have let their power go to their heads. They have decided that our founding fathers didn't finish or do a good enough job liberating us from the English and starting a country. They have taken it upon themselves to declare the Constitution a living document and up for interpretation by anyone that wants to keep their position of authority and everyone else beneath them from being able to do anything about it. Anyone that thinks the government is still by the people for the people you have lost touch with reality. We vote on who makes the laws, not the laws. Furthermore, the items we are allowed to vote on don't amount to anything. 100 plus years ago if you were convicted of a felony state or federal, you were sentenced to death or a prison term. If you were sentenced to death obviously your gun rights were the least of your worries. However if you were sentenced to a prison term on completion of your debt to society you were released and given none other than a small amount of money, a horse and a firearm. Your debt and punishment would have been considered paid in full. A mistake (and that is true for most felons, a mistake) made in your early years was not held against you the remainder of your life. As a felon the government has no problem taking away my rights even though my conviction was over 17 years ago and I have come along way since that pimple faced kid made a couple bad decisions. Now I am a fairly high paid superintendent for a large worldwide company with over a 50k budget at my disposal every month. However the government or society does not think I am a responsible contributing member of society so therefore should not have the same rights as others, yes rights, not bill of privileges, but they sure do want our taxes every time we turn around. If someone doesn’t have the same rights as another, why do they have to pay taxes they same as another? You wouldn’t pay an attorney that didn’t represent your interest, why pay a government that will not. Maybe everyone thinks they are better than those with felonies. All I know is the government has stripped the population with felony's of gun rights, possibly errantly; next step is to take your gun rights away. Once that has been accomplished they can do whatever they want.

Posted by: Jack | Jun 27, 2008 1:32:18 PM

Not the same,

You note that it might make sense that felons lose their right to take part in the democratic process when they attempt to side step it by committing a felony.

I have not heard the formulation that felons lose their right to vote because in committing a crime they sidestep the democratic process. What is the reasoning behind that? Are there any proponents of such a view?

But that aside that for a moment, you state: [i]t seems to me that felons who commit non-violent felonies should still have the right to own a gun once they leave prison.

But then, shouldn't a felon who has committed a crime (say a rapist) only remotely linked to the right to vote(as might be the cases of a perjurer, for instance) still be able to vote?

Posted by: Jonathan | Jun 27, 2008 1:07:48 PM

Jonathan, the question isn't whether a person can lose constitutional rights after they've committed a felony -- it's clear that they may. The quesiton instead is whether the right stripped has any relationship to the offense of conviction. For example, it might make sense that felons lose their right to take part in the democratic process when they attempt to side step it by committing a felony. But I think we would all agree that it would not make sense to say that no felon may practice their religion once they leave prison. It seems to me that felons who commit non-violent felonies should still have the right to own a gun once they leave prison. What's the relationship between a perjurer and the right to bear arms?

Posted by: Not the same | Jun 27, 2008 12:07:10 PM

The Constitution has no direct right to vote, though it does note that Congress shall be elected "by the people." One might fairly construe a right to vote for members of Congress by any person. Yet felons are routinely denied the right to vote.

Would you view this as a similar example? If not, I'd be curious as to why...

Posted by: Jonathan | Jun 26, 2008 7:30:58 PM

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