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Laws That Ban Nonlethal Weapon Possession by Felons:

(As before, for the footnotes and for the other parts of the argument, please see the full Stanford Law Review draft.)

Felons are generally barred from owning or carrying a firearm. This law may also deter firearm possession by people who live with a felon. Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and Virginia -- plus of course the general no-stun-gun jurisdictions -- add to this a ban on felons' possessing stun guns or having them in their control. Florida, Massachusetts, New Jersey, New York, and Portland (Oregon) ban felons' possessing or having control over irritant sprays.

Yet felons need self-defense tools, too. They may need self-defense tools more than the average nonfelon does: Being a felon dramatically hurts your career prospects, which means you'll likely have to live in a poorer and therefore on average more crime-ridden part of town. And the legal bar on felons' possessing firearms makes stun guns even more valuable to them.

Some felons have committed the sort of violent crimes that might make us reasonably worry that they are especially likely to misuse stun guns or irritant sprays, either in deliberate crimes or in impulsive crimes motivated by anger or revenge. But many felons have been convicted only of nonviolent crimes. And while most nonviolent felons have generally shown a willingness to disobey the law, it seems unlikely that this willingness will map into a substantially greater risk that they will violently misuse nonlethal weapons. This is especially when the past felony is fraud, embezzlement, and similar crimes that are rarely accompanied with violence. (Even embezzlers may sometimes be tempted to kill, when someone is about to uncover their crime. We might therefore worry that if a convicted embezzler returns to a life of embezzlement or fraud when he gets out of prison, he might pose a higher risk of misusing deadly weapons. But it's unlikely that he will misuse nonlethal weapons to avoid being caught again, because using a nonlethal weapon will generally only add to a criminal's punishment rather than making the criminal harder to catch, especially when the criminal has already been identified, which is likely the case for repeat-offender embezzlers or defrauders who are about to get arrested.)

It thus seems to me that at least nonviolent felons should generally be allowed to possess stun guns and irritant sprays, and just as they are allowed to possess stun guns in most states. The precise line between which felons are dangerous enough that we need to deny them stun guns and which are not might be hard to draw. But at least for many nonviolent felonies, the case for denying felons the tools needed for effective self-defense seems quite weak.

* * *

To come shortly: The constitutional analysis of nonlethal weapon bans (and not limited to felons or minors), under the right to bear arms, the right to defend life, and the state constitutional and statutory rights to religious exemptions.

cboldt (mail):
I'd have to dig for particular citations, but I recall reading that it used to be, convicted felons ha their personal property, including firearms, returned when they were released from prison.
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IOW, banning possession of a firearm by felons who have served the terms of their sentence is not "the way it's always been."
4.20.2009 12:36pm
Gabriel McCall (mail):
Are there any laws, sentencing practices, etc which reduce a felon's freedom to study or practice martial arts?

If not, could an equal protection argument be made that bans on stun guns and defense sprays unfairly impact smaller and weaker felons?
4.20.2009 1:16pm
Ben P:

This law may also deter firearm possession by people who live with a felon.



How would this play out in a courtroom?

At one level, a defendant saying "that's not my gun, and I wasn't possessing it" should be a factual defense. It negates a (in this case the primary) element of the crime.

But it also seems to me that constructive possession would be enough to tag a felon with any weapon found in a shared space. Oh, you say it was your roomates gun? well it was sitting where you could reach it, so you're going away.

Making a crime to merely be in the vicinity of someone who possesses a weapon seems awfully broad.
4.20.2009 1:27pm
bear (mail) (www):
It's not just 'felons' though is it? I know that is the oft repeated meme, felons and mentally disabled. But in reality, it is far broader then that. No? Including many misdemeanors, which carry a penalty over one year in prison? Or any domestic violence, which includes frightening someone.

E.g., Maryland has a second degree assault on a police officer statue (misdemeanor), which requires only a showing that the police officer was frightened. No violence, just the word of a trained and professional perjurer/justice obstructer/false report filer. Penalty: Up to five years in the hooscow!

Please forgive my ignorance. Prof V, when you mention felons being barred from this or that [arms related] ownership, do you mean more then just felons?

By the way...I really appreciate your take on the law and justice system, and appreciate your thoughtful, realistic, easily understood reasoning's on some of these complex matters. While you are obviously an insider, going with the flow, and working from within, those of us on the outside can get extremely frustrated with the simple fact that in order to get even the simplest answer concerning our laws and the possible consequences of our actions, we need to rely on high priced counsel, to know what ~should~ be reasonable, obviously without a guarantee. I contend that at any time, every one of us is in violation of some statue, the consequences for which could be life altering. All at the hands of a politically motivated, finger in the wind, entity with unchecked discretion on who, what, where, how and why to subject a citizen to its whim. The disconnect over the second amendment is particularly troubling. I appreciate your work in this area.

I find your reasoning concerning non-violent embezzelors and their heightened need for self defense to be particularly compelling. Does reasoning like this ever survive?

Best,

-bear
4.20.2009 1:34pm
Seamus (mail):

At one level, a defendant saying "that's not my gun, and I wasn't possessing it" should be a factual defense. It negates a (in this case the primary) element of the crime.

But it also seems to me that constructive possession would be enough to tag a felon with any weapon found in a shared space. Oh, you say it was your roomates gun? well it was sitting where you could reach it, so you're going away.



I understand that convicted felon G. Gordon Liddy has discussed the large collection of firearms that his wife keeps in their home.
4.20.2009 1:55pm
Fact Checker:
I don't understand why all you gun rights supporters seem to have no problem with barring felons who have served their sentences from owning guns and even getting concealed carry permits. After all, in most states, once they have served their time, criminals have all their rights restored, even the right to vote, sometimes automatically, often with an application that is rarely, if ever denied (except for a couple of states that are clinging to the vestiges of Jim Crow). Heck, in a couple of states, criminals don't even lose their right to vote while they are incarcerated. Why should they lose a right that is actually in the constitution?
4.20.2009 1:56pm
Fact Checker:
The way Prof Volokh reads the second amendment it reads "the right to bear arms shall not be infringed". It shouldn't matter if you are a mass murderer, rapist, communist, fascist, or Bernie Madoff, you should have the right to bear arms. And of course if you happen to be on Federal property (say a national park or a federal prison), no one should be able to infringe on that right.
4.20.2009 2:01pm
Fact Checker:
And my God, prison is a dangerous place! Just think how much safer it would be if the prisoners were allowed to be armed.
4.20.2009 2:03pm
LarryA (mail) (www):
And my God, prison is a dangerous place! Just think how much safer it would be if the prisoners were allowed to be armed.
OTOH, it wouldn't be much more dangerous. Prison is an excellent example showing just how effective gun control laws are in preventing violence.
This law may also deter firearm possession by people who live with a felon.
Back when I ran a gun store one of the few NICS denials I had was a young man purchasing a firearm. The NICS folks turned down the sale after confirming he lived with his father, who is a felon.
4.20.2009 2:43pm
cboldt (mail):
-- I don't understand why all you gun rights supporters seem to have no problem with barring felons who have served their sentences from owning guns and even getting concealed carry permits. --
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Emphasis on "all" and "seem" as seen from your point of view.
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There are numerous instances of discussion on the point, and AFAIK, most gun right supporters have the same sense of wonderment that you do. Many hold that banning felons from firearms ownership is wrong as a matter of Con law, and wrong as a matter of keeping good order in a society that puts high value on personal and individual liberty.
4.20.2009 2:46pm
Fact Checker:
Many hold that banning felons from firearms ownership is wrong as a matter of Con law, and wrong as a matter of keeping good order in a society that puts high value on personal and individual liberty.

Maybe I have been reading too many posts by Clayton Cramer and A. Zarkov. Because they certainly place little to no value on the personal and individual liberty rights of entire classes of people. Clayton would rather see every mentally ill person locked up in an institution (apparently with no rights to firearms) rather than limit access to firearms to "normal" people (even people with such deep seated paranoia and fear of large cities as himself).
4.20.2009 3:11pm
pintler:
Once upon a time, didn't 'felon' imply the very worst kind of criminal - robbers, rapists, murderers, etc? The word was a useful category of people you wouldn't invite to dinner, wouldn't let your kids play at their house, etc. Misdemeanors were the kind of indiscretions, like teenagers tipping over outhouses, that didn't forever mark you as depraved.

It seems that 'felon' has been pretty well devalued, though, and so I wonder if we need some new word to distinguish, say, Martha Stewart from Charles Manson? 'Velon', perhaps?
4.20.2009 3:35pm
PaulYale (mail):
If a felon is shot by his live in girlfriend he is committing a crime
4.20.2009 4:05pm
Tatterdemalian (mail):
I'm okay with convicted felons being barred from posessing firearms, as part of the stigma that I feel should rightfully follow them for life, unless the conviction gets overturned. I do think there should be more of an education campaign about this, as well ("Think a few weeks in prison for attempted armed robbery is a sweet deal? Think again."), but given how successful the "all men must be paid for existing, and no man must pay for his sins" crowd has been of late, it'd probably become one more bit of common sense that would get banned from our society for the greater good.
4.20.2009 4:44pm
Sagar:
so, has "irritant sprays" won the naming competition?
4.20.2009 4:45pm
Sagar:
Fact Checker,

by your reckoning, criminals should not be jailed since all men should have the right to life, liberty, and pursuit of happiness.

do you not wonder about that also when you misinterpret Prof. Volokh's reading of 2nd amendment?

(i don't find anything surprising with the concept that when you commit a crime, you lose some of your rights)
4.20.2009 4:51pm
Yankev (mail):

Once upon a time, didn't 'felon' imply the very worst kind of criminal - robbers, rapists, murderers, etc? The word was a useful category of people you wouldn't invite to dinner, wouldn't let your kids play at their house, etc.
Once upon a time, weren't all felonies capital offenses, and weren't felons (and even accused felons) considered "wolf's heads" who could be killed by anyone who encountered them?

Professor Volokh, if I were arguing in favor of barring felons from possessing non-lethal weapons, I would point out that a stun gun, taser, or irritant spray might make enable a felon to render a victim unable to defend against being murdered by strangling, bludgeoning, drowning or other means that require the murderer to physically overpower the victim.
4.20.2009 5:06pm
LarryA (mail) (www):
I'm okay with convicted felons being barred from possessing firearms, as part of the stigma that I feel should rightfully follow them for life, unless the conviction gets overturned.
For life? There are too many people who make one mistake, learn from it, and become productive citizens. There should be a fairly routine procedure for restoring rights after a period of years with no further offenses, as when you have a man who got caught boosting a car when he was 17, but has been law-abiding for the ten years since.

"Here's an incentive to go straight" will work far better than the "you're screwed forever" approach.
4.21.2009 3:34am
pintler:
LarryA: I think that gets back to the devaluation of the word 'felon', at least for me. Someone who puts on a stocking cap, climbs through a stranger's window and rapes her should be stigmatized for life.

OTOH, I've read several bios of Medal of Honor winners who entered the military because the judge offered them the choice of jail or the recruiter after joyriding or something similar, and I'd have to say they atoned and then some.
4.21.2009 8:16am
Ryan Waxx (mail):
For life? There are too many people who make one mistake, learn from it, and become productive citizens.


For several good reasons, we don't necessarily make that assumption when the person in question is a felon. Problem is that we've expanded the list of "felon" way too far to justify the restrictions we are placing on felons. So the real answer is to reduce the number of felonies.

There should be a fairly routine procedure for restoring rights after a period of years with no further offenses


There is. You petition your governor for the right back. Maybe it isn't the optimal solution, but that's not the same as no procedure existing.
4.21.2009 8:18am
Soronel Haetir (mail):
Ryan Waxx,

It exists but is not routine. So not the same thing.

This is an area where I beleive the Canadians have the right idea. My understanding is that something like 10 years after completion of all elements of a sentence pardon is pretty much automatic.
4.21.2009 8:39am
Clayton E. Cramer (mail) (www):

Maybe I have been reading too many posts by Clayton Cramer and A. Zarkov. Because they certainly place little to no value on the personal and individual liberty rights of entire classes of people. Clayton would rather see every mentally ill person locked up in an institution (apparently with no rights to firearms) rather than limit access to firearms to "normal" people (even people with such deep seated paranoia and fear of large cities as himself).
You characterize my position as accurately as that of others, it seems. I would have a polite conversation with you about the destruction that deinstitutionalization of the mentally ill has had, not just with respect to violence, but concerning homelessness, deaths from hypothermia, but it would be utterly lost on you.

I'm not afraid of Philadelphia (even though it is a pit). But then again, I'm allowed to defend myself there. Unlike Los Angeles.

To say that someone who owns a gun for self-defense is paranoid--while arguing that we should make it difficult for law-abiding people to own a gun: why? If it's paranoid to own a gun because of a fear of crime, why isn't it paranoid to want to disarm nearly everyone? Or is that not motivated by a "paranoia" of crime?
4.21.2009 7:33pm

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