Post-Heller blog debate over at Cato Unbound:
Bob Levy (mastermind of Heller), Dennis Henigan (Brady Campaign), and I are blog-debating Heller and its ramifications over at Cato Unbound. Erwin Chemerinsky should join us later in the week.
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Yes, I know. "Someone with too much time on their hands," said the blog commenter.
Do you agree with the position asserted today by Don Kates in the NY Post: "The courts should rule that conviction of such a trivial felony can't deprive such a 'felon' of her right to arms"?
While assisting Dave Hardy in Louisville at the NRA Exhibits Hall, he and I apparently ran into Justice Scott of the Kentucky Supreme Court. Justice Scott brought up his dissent in Posey vs Commonwealth (KY) which was decided February 23, 2006. Posey involved a non-violent felony conviction that resulted in loss of firearms rights for life.
For anyone interested, Justice Scott's opinion presents a very moving example of why the general rule that felons may not possess arms is somewhat overbroad.
The concept of felony originated in a time when virtually all crimes were punishable by death and the modern prison system didn't exist in any recognizable form.
At the very least, we need to separate out felons into two groups:
-felons whose criminal record indicates they will intentionally or inadvertantly (through poor impulse control, substance abuse or insanity) abuse the RKBA
-felons who who do not represent a risk to the public when armed.
The body of non-dangerous felons is probably not that large once you get beyond the potheads and white collar criminals. I personally suspect the vast majority of felons have substance abuse or violence problems that would make as-applied challenges kind of silly.
The DC government considers that thing in the illustration a "machine gun". Is Heller 2 in the works yet?
I would note, however, that this is completely within the "living Constitution" school of interpretation. Scalia is clearly right that the longstanding historical tradition is that felons could be disarmed, based on whatever the applicable code defined as a felony.
First, it doesn't take that much time, especially if you are a professional (which CATO has access to). Second, even if they didn't outsource the logo, they probably gave the task to some intern with a little artistic talent.
I would agree if we were talking about the Constitution itself. There is a historical basis for felons not being allowed firearms. However, a decision to set aside a historical notion is best left for the legislature, unless the Constitution itself demands historical fealty. As a result, IMHO, legislatures are fully equipped to decide whether to create a class of felons who do not lose various rights, including the one to keep and bear arms.
It appears Congress already did at 18 U.S.C. §921(20), stating that a disqualifying felony "does not include - (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."
One could argue that under any standard of review (short of strict scrutiny, at least), Congress has indeed drawn a defensible line limiting felon-in-possession disqualification at certain criminal "business practice" defendants. Or not. One could also argue that armed price-fixers tend to be no more or less dangerous as a class than, say, the armed securities insider traders who reside in identical McMansions in the same exclusive golf communities.
I wonder what Hennigan has against Douglas Kmiec, to hold Kmiec up for public ridicule by highlighting his absurd essay which among other things criticises Scalia's opinion for not incorporating church doctrine:
Kmiecs main argument is that there is no right to keep and bear arms because his brother-in-law was shot and killed 16 years ago in a robbery, in a city that has had a handgun ban for the past 26 years. All of which of course are devastating constitutional arguments.
Thus, to the extent Congress might be accused of applying an objective standard in exempting "business practice" felonies such as the Sherman Act from felon-in-possession prohibitions, it appears "severity of the offense" was not the criteria used.
I guess it depends on whether the defendant used a gun to get people to join the trust.
I suspect a "whiteness of the offender" test was the criteria. ;)
So "interesting" is the new "disgusting", then? I can't think of a better word (that is permissible to use here) for the revolting spectacle of Chemerinsky holding forth the position that as long as an injustice has been in place for a long time, it should be left in place. Or do I misunderstand him?
I posted the preceding before reading the Chemerinsky clever but dishonest spin on Miller:You can say anything if you get to leave out important little words. Isn't it a much better characterization of Miller to say "safeguarding individual possession of the type of firearms used for military service"?