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Felons and the Right To Bear Arms:

The North Carolina Supreme Court has just held, in Britt v. State, that some felons -- whose crimes are long in the past -- do have a constitutional right to bear arms, at least under the North Carolina Constitution:

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff’s crime involved violence or the threat of violence. Plaintiff ompleted his sentence without incident in 1982. Plaintiff’s right to possess firearms was restored in 1987. No evidence has been presented which would indicate that plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and [the 2004] adoption of N.C.G.S. § 14-415.1’s complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety....

Based on the facts of plaintiff’s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute’s operation, as applied to plaintiff, the 2004 version of N.C.G.S. § 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety [the constitutional test that the court was applying under the state constitution -EV]. In particular, it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.

[Footnote moved:] Because we hold that application of N.C.G.S. § 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff’s argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.

The vote was 5-2, with four of the five Justices joining the majority opinion and the fifth concurring in the judgment without written opinion. Note that since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court (though of course it can be overturned through the North Carolina constitutional amendment process, should there be enough support for that).

Thanks to reader Steve Martin for the pointer.

Allan (mail):
What does it matter? It is still a federal crime for a felon to bear arms.

Almost like medical marijuana it is.
8.28.2009 6:08pm
FantasiaWHT:
I've been working with a lot of commitment of sexually violent persons cases lately, and I wonder if a similar sort of framework would work for deprivation of second amendment rights.

So when you commit a person civilly, you are looking at a major abrogation of constitutional liberty rights. Lots of procedural safeguards have to be in place to allow a state to do it, like the state having the burden of beyond a reasonable doubt or at least clear and convincing, and the right to regularly seek release and have the state continue to prove you don't deserve release.

Why not something similar for keeping felons from firearms? Once your sentence is up, the state has to prove (at BARD or CCE) that you are still a dangerous person, likely to commit violent acts because of a mental disorder, whatever to take away your gun rights. Then the person can petition every so often to have the rights restored, and has to at least offer some evidence (generally an export psych eval) that you've changed.
8.28.2009 6:10pm
bobh (mail):
Judges making law! What's the world coming to?
8.28.2009 6:33pm
ShelbyC:

What does it matter? It is still a federal crime for a felon to bear arms.


Not if you've had your rights restored by the state.
8.28.2009 6:37pm
ruuffles (mail) (www):
Strange. Why doesn't veesee have a tribute to Ted Kennedy? After all, Bork was on the side that viewed the 2nd as a collective right. Had he been confirmed instead of Anthony Kennedy, Heller would have gone the other way.
8.28.2009 7:18pm
Tim Nuccio (mail) (www):
"Judges making law! What's the world coming to?"

More like judges upholding the constitutional rights of their citizens.

Not sure what good this does, though. The GCA of 1968 isn't going to be ruled unconstitutional by too many judges anytime soon.
8.28.2009 7:41pm
ShelbyC:

Not sure what good this does, though. The GCA of 1968 isn't going to be ruled unconstitutional by too many judges anytime soon.


Well, again, the guy in the case had his rights restored by the state, which means that the GCA doesn't apply, no?
8.28.2009 7:57pm
the jackal (mail):
Isn't that only for federal felons, Allan? Lil different than the good-for-you-ganja.
8.28.2009 7:59pm
ShelbyC:

Isn't that only for federal felons, Allan? Lil different than the good-for-you-ganja.


Nope. It's for all felons who have not had their civil rights restored.
8.28.2009 8:06pm
Tim Nuccio (mail) (www):
I read the case, and you're likely right.

I also read the dissent, and I wonder what the hell the judge was thinking when he quoted Scalia's dicta in Heller.
8.28.2009 8:20pm
Oren:

Plaintiff’s right to possess firearms was restored in 1987.

I must be very dense today, because I'm missing how a 2004 statute could retroactively un-restore his rights?
8.28.2009 8:59pm
Order of the Coif:
It's hidden but it's there. STATE law governs under the GCA'68 as amended by the Volkmer-McClure bill in 1986.

18 U.S.C. sec. 921 (a) (20)
The term “crime punishable by imprisonment for a term exceeding one year” 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, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
8.28.2009 9:14pm
Mark N. (www):

I must be very dense today, because I'm missing how a 2004 statute could retroactively un-restore his rights?

For better or worse, there are lots of such regulations. For example, sex-offender registration statutes generally retroactively apply even to convicted sex offenders who had served their sentence, been released, and ended their parole before the statute was passed.
8.28.2009 9:16pm
keithwaters (mail):
There is not a snowball's chance we North Carolinians will move to take the guns from this man. Maybe the people in Orange County, but that's about it.
8.28.2009 9:25pm
Oren:

For better or worse, there are lots of such regulations. For example, sex-offender registration statutes generally retroactively apply even to convicted sex offenders who had served their sentence, been released, and ended their parole before the statute was passed.

Inapt analogy -- the petitioner here explicitly had the right in question restored.

Perhaps we should institute sex-offender rehabilitation boards -- akin to the ones that exist for guns, voting and the like.
8.28.2009 9:40pm
Tim Nuccio (mail) (www):

I must be very dense today, because I'm missing how a 2004 statute could retroactively un-restore his rights?


It can't. That's what the ruling in the case said.
8.28.2009 10:01pm
theBuckWheat (mail):
I would start by pointing out that over the years, the legal system has "inflated" the value of a felony conviction, both by not adjusting the value of thefts for inflation over decades since these amounts were cast in statute, as well as multiplying the number of crimes that are felonies. The most recent example comes from, of all places, the Consumer Product Safety Commission where it is now a federal crime to sell a recalled product.

In my own state of Missouri, any theft over $500 is a felony. We can thank the Federal Reserve's printing press that this is not nearly as much wealth as it used to be. How may golf club sets cost more than this?

In particular, we have downright multiplied the non-violent crimes that are felonies. A lot are more technical in nature. Having a blanket rule that felons lose their RKBA, in my opinion, does not serve justice at all.
8.28.2009 10:40pm
Tim Nuccio (mail) (www):
I think the loss of the right to vote is even worse. So even if you think the law is unjust, if you're a felon, you can't vote the bastards out of office who made that unjust law. It's an atrocity to our republic that this is allowed to stand.

Nobody should be denied the right to vote, or bear arms, or free speech or any other fundamental right for that matter.
8.28.2009 10:52pm
Jon Roland (mail) (www):
Let's be more precise. Disabling the RKBA without a trial on a petition to disable it is a violation of due process and of the prohibition against bills of attainder. See Public Safety or Bills of Attainder?
8.28.2009 11:06pm
Mark N. (www):

Inapt analogy -- the petitioner here explicitly had the right in question restored.

I don't see how that's relevant. Why does the fact that the right was ever removed in the first place give a greater weight to it than one that was never "explicitly restored" because it was never in fact removed?
8.28.2009 11:09pm
Jon Roland (mail) (www):
Rights can't be removed. Only the exercise of them disabled. Subtle but important distinction.
8.28.2009 11:18pm
pete (mail) (www):

Nobody should be denied the right to vote, or bear arms, or free speech or any other fundamental right for that matter.


Sorry, but most of us do not want to live in a state of anarchy and want a functional justice system and government. Prisoners free to bear arms while in prison and also free to walk out the door of the prison whenever they feel like it is a pretty foolish system and is what you get when nobody is denied any fundamental right.

People form governments because we realize that some rights need to be curtailed with due process of law in order to have a functioning society.
8.29.2009 12:04am
Mark Jones (mail):


Nobody should be denied the right to vote, or bear arms, or free speech or any other fundamental right for that matter.


Sorry, but most of us do not want to live in a state of anarchy and want a functional justice system and government. Prisoners free to bear arms while in prison and also free to walk out the door of the prison whenever they feel like it is a pretty foolish system and is what you get when nobody is denied any fundamental right.


Okay, how about this: nobody should be denied the right to vote, or to bear arms, or free speech for the duration of his sentence following conviction of a crime. (I'll even throw in "Or when he's in custody pending trial, or during his trial" for free.)

In prison? No voting, no RKBA. On parole or probation? Still no. You've been released from prison, but you're still a convict. Once you've completed your sentence? You're supposedly either a) rehabilitated or b) have paid your debt to society, however you want to look at it. So you get your rights back. You can vote and you regain RKBA.
8.29.2009 12:28am
David Hardy (mail) (www):
I helped write 18 U.S.C. sec. 921 (a) (20). Before then, the rule was that a State restoration of rights had NO effect on the Federal bar to gun ownership.

When the Gun Control Act of 1968 was under debate, there were various proposals to limit the ban on felons. Previous federal law had only barred violent felons, for instance. In the end Congress decided that trying to figure out which felonies were in and out was too difficult, and simply barred all, with one way out -- ATF was authorized to grant "relief from disabilities" (dis-ability to legally own a firearm), with pretty much absolute discretion. In practice, the agency was pretty decent about doing it.

Then, back about 8 years ago, Violence Policy Center ran a PR campaign, which the press lapped up, on a theme of federal money is being spent so that felons can get guns. Congress put a budget rider on ATF, which I believe endures to this day, forbidding it to spend money to grant such relief (EXCEPT to corporations, I might add).

As a practical matter, those barred by reason of a state felony conviction could use state restorations to get their rights back. But federal convictions meant a lifetime bar, as did bars for any noncriminal reason (recently there was an act that would let persons barred by reason of a mental committment secure a return of rights, but until then that was a lifetime bar, as were the other noncriminal bars -- people given dishonorable military discharges, renouncing citizenship, etc.)
8.29.2009 12:38am
Jay:
I might be misrecalling, but I think another issue is that the exception for state felons whose civil rights have been restored based on an expunged conviction is read quite narrowly. That is, a state law/exception process that purported to simply grant felons the right to have guns would not be enough to remove the federal disability. You need essentially a full and absolute restoration of rights/expungement of the record. Since this is typically harder to get, and states are more reluctant to fully forgive felons this way, it's harder to get into the green zone under federal law as well.

Random thought--I guess for a federal felon, you're permanently screwed in this regard unless you get an actual presidential pardon, right?
8.29.2009 1:23am
Bart (mail):
Colorado has a constitutional right to bear arms in defense of person, property or home, or in support of the civil authorities as the militia. Concurrently, the Colorado statutes prohibit felons from possessing firearms for ten years. Th courts resolved the conflict by holding it is a complete affirmative defense to the statute for the felon to be possessing a firearm for the purposes set forth in the constitution.
8.29.2009 1:31am
Lokkju:
David Hardy:
I actually checked - it was included in this years appropriations bill again.
8.29.2009 3:00am
J. Aldridge:
The state court seems to suggest that "possession of a firearm" is the same as "bearing arms" as part of the military power of the state.
8.29.2009 3:19am
Brett Bellmore:
I haven't had a chance to read the whole ruling yet, but based on the results of a search for "military" coming up empty, I'd suggest you point out the passage where they suggest that.
8.29.2009 7:47am
martinned (mail) (www):

On parole or probation? Still no.

Why would you make that exception? As far as I can see, the only reason for denying incarcerated felons the vote is that they would mess up the vote in the district where the prison is located. Otherwise, I don't see why felons should not vote, unless they've been convicted of trying to overthrow the government or sth.
8.29.2009 8:55am
J. Aldridge:
I haven't had a chance to read the whole ruling yet, but based on the results of a search for "military" coming up empty, I'd suggest you point out the passage where they suggest that.

I was under the impression the NC court had confirmed in State v. Dawson (1968) that the right to bear arms under the NC constitution means to secure a well-regulated militia (military power).
8.29.2009 9:09am
David Chesler (mail) (www):
Earlier this month the Massachusetts SJC held that requiring sex offenders who were convicted before a 2006 law that required sex offenders to wear GPS devices was a retroactive punishment, prohibited by the US Constitution and the Mass Declaration of Rights. This applies if they are on parole, or violated parole after 2006.

I haven't seen calls to apply that reasoning to other ex post facto restrictions on sex offenders, or on other rights.

Does this North Carolina case have any wider applicability, like to other similarly situationed North Carolina residents? (And if so, how similarly?)

The Mass case seemed to hinge on the requirement being punitive, or at least burdensome; if I understand the NC case it's because the ban was stupid.
8.29.2009 9:24am
ShelbyC:

As far as I can see, the only reason for denying incarcerated felons the vote is that they would mess up the vote in the district where the prison is located. Otherwise, I don't see why felons should not vote, unless they've been convicted of trying to overthrow the government or sth.


Well, how 'bout to punish them?
8.29.2009 9:31am
martinned (mail) (www):
@ShelbyC: Well, dûh. But don't you think that in a democracy taking away someone's right to vote should be disfavoured as a punishment? Exactly for the reason mentioned above, that taking away felons' right to vote means that no politician can ever lose votes by arguing for tougher punishments, no guns for felons, etc. Not all causes that get an artificial leg up this way are causes you agree with...
8.29.2009 10:02am
pintler:

In prison? No voting, no RKBA. On parole or probation? Still no. You've been released from prison, but you're still a convict. Once you've completed your sentence? You're supposedly either a) rehabilitated or b) have paid your debt to society, however you want to look at it. So you get your rights back. You can vote and you regain RKBA.


What about e.g. a gentleman with a propensity for using a pistol in 'your wallet or your life' type transactions? Is it unreasonable to have a lifetime of 'unsupervised parole' with a condition of no guns?
8.29.2009 10:26am
pintler:

Colorado has a constitutional right to bear arms in defense of person, property or home, or in support of the civil authorities as the militia. Concurrently, the Colorado statutes prohibit felons from possessing firearms for ten years. Th courts resolved the conflict by holding it is a complete affirmative defense to the statute for the felon to be possessing a firearm for the purposes set forth in the constitution.


How broadly is that applied in practice? It seems that 'bear arms in defense of person' would cover almost anything short of an actual criminal misuse.
8.29.2009 10:30am
Malvolio:
I don't see why felons should not vote, unless they've been convicted of trying to overthrow the government or sth.
Well, how 'bout to punish them?
How about "nobody cares who a felon thinks should get elected"? Seriously. If you're such a miscreant that the state has to lock you in a cage for years on end, the value of your contribution to the political process is probably nugatory.
8.29.2009 10:32am
martinned (mail) (www):

How about "nobody cares who a felon thinks should get elected"? Seriously. If you're such a miscreant that the state has to lock you in a cage for years on end, the value of your contribution to the political process is probably nugatory.

If that's the criterion, I can think of a few more categories of people whose contribution is likely to be "nugatory". (High school dropouts, the elderly, Republicans/Democrats [pick your poison...]) Last time I checked, we don't make people's right to vote depend on whether they are likely to have anything particularly enlightened to say. For the question of whether that is a good thing, I gladly refer you to prof. Somin.
8.29.2009 10:42am
pete (mail) (www):
Felonies are supposed to be pretty serious violations of the law and social mores that can not be easily fixed, serious enough to have lifelong consequences. I have no problem with stripping people of rights permanently when they are convicted of some crimes, particularly very violent and destructive crimes (sexual assault, arson, attempted murder, etc.) that caused or easily could have caused lifelong damage to the victims.

The problem is that too many crimes carry the consequences of felonies that should not. I almost think the US needs to have a three tiered system: misdemeanors, low-level felonies, and real felonies. Low level felonies might get you more than a one year sentence, but would be for generally non-violent crime and would not have as many long term consequences as felonies. Many states already classify felonies based on their seriousness and you could just incorporate that into the language, but the federal government has decided to treat all felonies the same because that is easist when dealing with 50 different states.
8.29.2009 10:43am
Bart (mail):
pintler:

BD: Colorado has a constitutional right to bear arms in defense of person, property or home, or in support of the civil authorities as the militia. Concurrently, the Colorado statutes prohibit felons from possessing firearms for ten years. Th courts resolved the conflict by holding it is a complete affirmative defense to the statute for the felon to be possessing a firearm for the purposes set forth in the constitution.

How broadly is that applied in practice? It seems that 'bear arms in defense of person' would cover almost anything short of an actual criminal misuse.

Almost. Under this holding, felons are pretty much only barred from using firearms for target shooting, hunting and criminal acts, with the last two being the most common cases that I have observed as a criminal defense attorney.

If the felon is merely found possessing a firearm, he or she will generally claim that they possessed it for self defense and have a decent chance of prevailing.
8.29.2009 10:54am
R Gould-Saltman (mail):
"But don't you think that in a democracy taking away someone's right to vote should be disfavoured as a punishment? Exactly for the reason mentioned above, that taking away felons' right to vote means that no politician can ever lose votes by arguing for tougher punishments, no guns for felons, etc. Not all causes that get an artificial leg up this way are causes you agree with..."

Tangential note: oddly, within the last day, I've heard a (local) right-wing AM radio wing-nut pitch that the whole motivation for the California prison-health-care lawsuit, AND for the (Republican) Governor's insistence that the budget problem requires reducing the prison population, is that "Once those guys are out of jail, they can VOTE! . . . and WHO are they gonna vote for? The folks who let'em out! And WHO'S that likely to be?!?"


ah, political discourse at its finest. I'm interested in learning if there were amicus briefs on behalf of Plaintiff by any organizations who can now be accurately characterized as "wanting to give convicted drug dealers guns!"

r gould-saltman
8.29.2009 10:55am
pintler:

Almost. Under this holding, felons are pretty much only barred from using firearms for target shooting,...


Isn't target shooting necessary preparation for self defense?
(Not a joke, actually - say the felon has never fired a gun, and now decides they want to get one for self defense. The self defense part may not work out too well w/o a little practice).

This would apply to non felons, too? No need to spend the big bucks on a CCW permit? Concealed carry for out of state people (IIRC CO is fairly restrictive on reciprocity)?

For felons in possession, do they get punted to federal court, where presumably this defense wouldn't apply?
8.29.2009 11:19am
Oren:

Last time I checked, we don't make people's right to vote depend on whether they are likely to have anything particularly enlightened to say.

There is a wide chasm between "probably doesn't have anything enlightened to say" and "has demonstrated violent contempt for the rights of his fellow citizens".
8.29.2009 11:36am
martinned (mail) (www):

There is a wide chasm between "probably doesn't have anything enlightened to say" and "has demonstrated violent contempt for the rights of his fellow citizens".

@Oren: Well, if that were really it, taking away their right to vote would make sense. However, the vast majority of felons are not after your or my or anyone else's rights. Our money, sure. My TV, maybe. (It's not a very expensive TV.) But my rights? Only in the indirect sense that what they do conflicts with my property rights.

Felons who are really convicted for going after my rights, such as the extreme case of the guy looking to overthrow the government, should lose their voting rights. But to describe all felons as "demonstrat[ing] violent contempt for the rights of [their] fellow citizens" is giving them way too much credit.

If dealing cocaine, which AFAIK doesn't violate anyone's rights, or a no-aggravating-circumstances B&E - which does - is enough to take away someone's right to vote, why stop there?
8.29.2009 11:47am
LarryA (mail) (www):
I must be very dense today, because I'm missing how a 2004 statute could retroactively un-restore his rights?
The same way the 1996 Federal Lautenberg Amendment took away the RKBA of anyone convicted of misdemeanor domestic violence (MCDV), even if the conviction was twenty years before the law was passed. Lots of military and law enforcement lost careers over that one. But it’s for gun control, can’t let a little thing like rights get in the way.
as were the other noncriminal bars -- people given dishonorable military discharges, renouncing citizenship, etc.
Quibble: Dishonorable discharge is a criminal, almost always felony-level situation. Otherwise the person will get a bad conduct or lesser discharge.
Isn't target shooting necessary preparation for self defense?
Given that the U.S. Army is consulting with hunters, using their experience in woodcraft, etc. in training, you could make the case that hunting is training for the militia. (Don’t have an online cite.)
8.29.2009 12:08pm
LarryA (mail) (www):
Only in the indirect sense that what they do conflicts with my property rights.
Stealing your property is a pretty direct assault on your property rights. Murder, sexual assault, assault, kidnapping, robbery, burglary, etc. are direct violent assaults on your right to life and liberty. Taking away voting, RKBA, and other citizen rights is reasonable. So is restoring them after a period of rehabilitated behavior.
8.29.2009 12:17pm
pete (mail) (www):

Tangential note: oddly, within the last day, I've heard a (local) right-wing AM radio wing-nut pitch that the whole motivation for the California prison-health-care lawsuit, AND for the (Republican) Governor's insistence that the budget problem requires reducing the prison population, is that "Once those guys are out of jail, they can VOTE! . . . and WHO are they gonna vote for? The folks who let'em out! And WHO'S that likely to be?!?"


From what I rememebr reading once the felon community voting block in DC is why Marion Barry keeps getting reelected. Even if the felon can't vote he has family and friends that can and who care about what happens to him.
8.29.2009 12:21pm
pintler:

If dealing cocaine, which AFAIK doesn't violate anyone's rights, or a no-aggravating-circumstances B&E - which does - is enough to take away someone's right to vote, why stop there?


FWIW, I would legalize drugs, sex and rock-n-roll. That some crimes shouldn't be crimes at all speaks to legalizing those things, rather than affecting penalties for things that should be crimes.

I confess to having mixed opinions on burglars or murderers or for that matter shoplifters should vote. One viewpoint is that society works best with the broadest possible electorate; certainly I would oppose exclusions based on race, wealth, gender, etc. But I think it's fair to ask if there are restrictions that increase the quality of the vote, and you can at least argue with a straight face that one thing even minor criminals like bad check scammers evince is a deficit of altruism. Are you sure that biasing the vote towards those who manage to go through life without a propensity to prey (even in the minor property crime sense) on their fellow citizens is a bug instead of a feature? Is including the viewpoint of the predatory community really advantageous to society?

(As an aside, don't underestimate the value of your tv. We were broken into several years ago, and the monetary damage worked out something like:

value of goods taken: $150
repairs (new door, door frame, 2 days off work to render house lockable again): $1200
security upgrades (deadbolts, reinforce other door locks, alarm installation): $2000
plus a few hundred a year to the monitoring company.

One can argue these are irrational expenses. OTOH, we have alarm-less neighbors who have lost many thousands because the thieves spent a couple of hours selecting their haul before backing up a stolen car to the garage door. Also, walking through your house with drawers upended, medicine cabinet open, closets open and things strewn everywhere imposes a substantial intangible cost. YMMV, of course.)
8.29.2009 12:26pm
martinned (mail) (www):

One viewpoint is that society works best with the broadest possible electorate;

Well, there's that. But the even more basic principle is that all government requires the consent of the governed. Democracy is a system for periodically reaffirming that consent, as well as for influencing what government does with it. Denying a whole category of people the right to have a say in the formulation of the laws that they are required to obey goes counter to their right to self-determination, their individual liberty, etc. As noted, to some extent that is entirely justified as a punishment for crimes committed, but then ideally on a case-by-case basis and for a reasonable period of time.

(Here in the Netherlands, taking away someone's right to vote is a subsidiary penalty, but only for some crimes, and only if the judge explicity imposes it based on the reasoned judgement that this is an appropriate punishment for the crime committed.)
8.29.2009 12:33pm
pete (mail) (www):

Taking away voting, RKBA, and other citizen rights is reasonable. So is restoring them after a period of rehabilitated behavior.


I have met some felons who have rehabilitated enough that I think at least some of their rights should be restored. One example was an acquaintance who was convicted of felony stupidity. He and a couple of friends thought it would be funny to break into their old high school locker room and play around with the sports equiment. That was his first arrest ever as far I know, but they charged him with a felony and I am pretty sure he got off with time served and probation. They did not intend to cause any actual harm and did not hurt anyone, but now you have someone who is barred for life from voting and owning a gun. Its been about 10 years now and to my knowledge he has not been arrested or convicted of another crime since then.
8.29.2009 12:40pm
pintler:

But the even more basic principle is that all government requires the consent of the governed.


There are, I think, countries where ballots are distributed in prison. There is a continuum from that, thru 'can vote automatically once outside of prison', 'can automatically vote after parole completed', 'can vote automatically after X years', 'can vote after parole and restitution, if you ask' (my state), 'can only vote if you ask, and request granted after some period of exemplary, or at least conviction free, living'.

I'm not sure I see a bright line between OK and not OK anywhere on that continuum. Personally, I kind of like the last one - it holds out hope for full reintegration into society, if you manage to live the kind of law abiding life most people manage to do.


but now you have someone who is barred for life from voting and owning a gun. Its been about 10 years now and to my knowledge he has not been arrested or convicted of another crime since then.


Sounds like someone whose rights should be restored. Perhaps some prosecutorial discretion would have been wise, too.
8.29.2009 1:00pm
Forgotten Liberty (mail) (www):
I think that when a judge is sentencing someone for a felony, the restrictions on fundamental rights that goes along with the felony conviction should be included in the sentencing. For instance, sentencing someone to jail for 2 years for their crime and no firearms or voting privileges for 4 years. That way it is all part of the punishment and could not become a lifelong restriction... with the exception of violent offenders who should never be let out of jail in the first place.
8.29.2009 1:01pm
Tim Nuccio (mail) (www):

That way it is all part of the punishment and could not become a lifelong restriction... with the exception of violent offenders who should never be let out of jail in the first place.


Exactly. Either you've paid your debt to society and you haven't.

Removing exercise of a right is the same as removing it entirely. Nobody should be denied their rights in a free society unless they are incarcerated.

This would never be tolerated for any other right.
8.29.2009 1:09pm
AJK:


Exactly. Either you've paid your debt to society and you haven't.


So what's the point of parole?
8.29.2009 1:23pm
Soronel Haetir (mail):

This would never be tolerated for any other right.


Umm, it already is tolerated with regard to voting in many places. According to what I've read the INS considers voting to be the most fundimental right of US citizenship. Lifetime parole/probation with the consequent 4th amendment non-protection also appears to be gaining traction.
8.29.2009 1:47pm
DennisN (mail):
Forgotten Liberty:

For instance, sentencing someone to jail for 2 years for their crime and no firearms or voting privileges for 4 years.


I'd rather see it worded that the suspended rights would be restored upon application to the Court after X years without a felony conviction. The restoration would be a "shall issue" based on a records check, analogous to a CCW permit process in some states.


AJK:

So what's the point of parole?


Parole, if allowed, is part of your sentence. Your custodial sentence is reduced based on your promise, your parole, to behave yourself.
8.29.2009 2:16pm
Skyler (mail) (www):
I've always thought that if you can prohibit felons from possessing arms, then if you want to disarm the population, just call everyone a felon. It's not too hard to do. It will likely happen some day. Especially if we elect too many more marxists to the white house.
8.29.2009 3:04pm
RAH (mail):
Ayn Rand wrote about the best way to control people is make so many laws that the people become criminals and that always takes their rights.

The present trend to make everthing a felony like a yardsell of recalled items is a perfect example. Therfore a felon is not a murderer anymore just someone who fell in foul of regulations.
8.29.2009 3:27pm
David Hardy (mail) (www):
1) I think AZ has a $500 break between misdemeanor and grand theft, dating from the 1977 code revision. Back in '77, I was driving a $600 decent used car and living in a $175/month two bedroom duplex.

2) I once researched how the Gun Control Act got its prohibited persons bars to gun ownership, and it was a pretty arbitrary process. There was an attempt to limit it to major felonies, but no one could define them well. It finally wound up as all felons barred, but those who think they are unlikely to do something violent can apply to ATF for relief from disability. (That actually worked well, but Congress barred funding for it some years ago.)
I shouldn't say all felonies, because there was an exception for antitrust and suchlike economic crime. That came in because a big corporation (Olin maybe) that owned ammo making firms had been convicted of felony antitrust violations. So they got a special exception.
The mental section wound up with "mental defective," which was an ancient and ambiguous term even in 1968.
Dishonorable discharge came in because (1) someone argued that if a person wasn't worthy to carry a gun for his country, he shouldn't be able to do it as a civilian and (2) some reflected that nothing in the bill would have barred Lee Harvey Oswald from getting a gun, there should be something that does, and he got a dishonorable discharge. (Actually, he didn't, but this should give an idea of how chaotic the thinking was.
Renouncing citizenship came in because some celebrities (Richard Burton?) had done it in protest over Vietnam, ... and I'm not quite sure what the connection between that and violent crime was, but nobody was willing to object.
8.29.2009 3:48pm
Mark Jones (mail):

What about e.g. a gentleman with a propensity for using a pistol in 'your wallet or your life' type transactions? Is it unreasonable to have a lifetime of 'unsupervised parole' with a condition of no guns?


I think it is (unreasonable, that is). If we think he can't be trusted not to engage in a little "freelance socialism" again, he shouldn't be on unsupervised parole. At the very least, he should be on ordinary parole—with the consequent restrictions on his movements, 4th amendment freedoms, right to vote, RKBA, etc. And maybe he should still be in prison.

If we don't trust him to run around unsupervised, the correct response is not to let him run around unsupervised. If we do trust him to stay out of trouble, he should have his rights restored.

I'm also among those who think "felony" has been inflated into insignificance. Should someone who bilked countless people out of their life savings be punished severely? Hell, yes. Should we treat his crime as equivalent to rape, armed robbery, murder the like? I don't think so. I'd go with the suggestion above that we establish two levels of felonies—crimes more severe than mere misdemeanors, and those that fall into the old-fashioned view of felonies, which should be relatively few and very harshly punished.
8.29.2009 4:31pm
Tim Nuccio (mail) (www):

Umm, it already is tolerated with regard to voting in many places. According to what I've read the INS considers voting to be the most fundimental right of US citizenship. Lifetime parole/probation with the consequent 4th amendment non-protection also appears to be gaining traction.



INS doesn't exist anymore so I have no idea what you're talking about.

There is a significant difference between parole and probation as well.


If we don't trust him to run around unsupervised, the correct response is not to let him run around unsupervised. If we do trust him to stay out of trouble, he should have his rights restored


This seems like it should be common sense. I'm somewhat sad to see that it is not.
8.29.2009 4:47pm
pete (mail) (www):

And maybe he should still be in prison.


Lets be honest about this. The main reason we let people out on parole is that we can't afford to keep them in prison and parole is a lot cheaper. Lots of people who are on parole should in p[rison but we can't afford it and if they are on parole at least they can try to get a job.


Should someone who bilked countless people out of their life savings be punished severely? Hell, yes. Should we treat his crime as equivalent to rape, armed robbery, murder the like? I don't think so.


I would treat that person that severly. Large theft like that can ruin people lives and someone like that should spend the rest of their life behind bars. That sort of person should have their rights persmently restricted if they are released.
8.29.2009 4:48pm
martinned (mail) (www):

I'd go with the suggestion above that we establish two levels of felonies—crimes more severe than mere misdemeanors, and those that fall into the old-fashioned view of felonies, which should be relatively few and very harshly punished.

Since the Code pénal of 1810, France has such a three-step. They distinguish between contraventions, délits and crimes. Only matters punishable by more than 10 years in prison or a fine in excess of € 75.000 is a crime.

Each of these categories also comes with a different court. Respectively a tribunal de police, a tribunal correctionnel, and a Cour d'assises. Only the latter comes with a jury.
8.29.2009 4:51pm
Mark N. (www):

I'm also among those who think "felony" has been inflated into insignificance. Should someone who bilked countless people out of their life savings be punished severely? Hell, yes. Should we treat his crime as equivalent to rape, armed robbery, murder the like? I don't think so.

As with many things, this depends partly on what you see as the purpose of criminal justice. In a moral sense, I agree that violent crimes are generally worse than non-violent crimes. But if a major purpose of the law is deterrence, it might be necessary to punish some non-violent crimes quite severely in order to effectively deter them--- for crimes that come with a large potential profit if not caught, what happens to you if you are caught has to be bad enough to offset that temptation.
8.29.2009 5:35pm
NC atty (mail):

In Lopez, the SCOTUS said that the commerce clause did not give Congress the authority to regulate guns in schools; SCOTUS purposely declined to answer whether Congress has authority to regulate guns under the commerce clause, if I remember correctly. Renquist concludes, "To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."
So do felons w/ guns substantially affect interstate commerce? In my opinion, no.

The 4th Circuit has said time and time again the the PFF (federal offense) is a "regulation" and not a "punishment," therefore holding pre-PFFelons accountable to this law does not violate ex post facto clause. Individually, schools and guns have traditionally been within the province of the State to regulate not the feds; for example, "NC's concealed weapons permit." The 4th Circuit's reasoning is misguided, in my opinion, because Congress only has authority to regulate interstate commerce, not one's right to possess a gun for purposes of defending one's home or self.

I'm glad N.C. Supreme Court was brave enough to take the first step towards common sense with regard to one's right to possess a gun under the N.C. Const.
8.29.2009 6:34pm
ArthurKirkland:
I haven't formed a reliable opinion concerning the "rights" of convicted violent felons -- those who were armed, or engaged in violence, or commissioned violence, or were involved in a crime that involved violence -- to possess a firearm.

And I recognize some line-drawing -- whether to distinguish an unarmed thief who steals from a back porch from the well-dressed thief who defrauds consumers, for example, or the person who exposes employees or neighbors to toxic substances from someone who sells marijuana in a home that contains a gun -- must be done.

But I believe a non-violent felon should be entitled to possess a reasonable firearm for self-defense in the home -- so long as he complies with applicable regulations concerning registration, the nature of the weapon, and the like.
8.29.2009 7:16pm
Tim Nuccio (mail) (www):


But I believe a non-violent felon should be entitled to possess a reasonable firearm for self-defense in the home -- so long as he complies with applicable regulations concerning registration, the nature of the weapon, and the like.


Registration? Nature of the weapon? What applicable regulations?

The current "regulation" is a total ban.
8.29.2009 7:21pm
pintler:

I think it is (unreasonable, that is). If we think he can't be trusted not to engage in a little "freelance socialism" again, he shouldn't be on unsupervised parole. At the very least, he should be on ordinary parole—with the consequent restrictions on his movements, 4th amendment freedoms, right to vote, RKBA, etc. And maybe he should still be in prison.


Is it OK to say that:
-a swindler can't work in the securities industry ever again
-an officer dismissed for excessive force can never work as an LEO again
-a teacher convicted of sex w/ a student can not work as a teacher again
-a convicted pedophile can't open a day care
-a crooked lawyer can't practice law

In these cases, you're permanently prohibited from pursuing what may be the only livelihood you know. Is that more or less severe a restriction than prohibiting firearms to violent criminals?

How would you feel if a judge, following conviction for a drunken episode of rural traffic sign shooting, imposed a fine and 1 year prohibition on driving and a 5 year prohibition on using alcohol or possessing firearms? Are all of those restrictions equally bad?
8.29.2009 9:02pm
Jon Roland (mail) (www):
The main original rationale for disabling those in penal custody from voting is that those holding them might exercise undue influence over how they vote: "We might not know how each one of you votes, but if the voting precinct consisting of the inmates of this prison don't vote to approve the bond issue for new prison construction I'm afraid we are going to have to put you all on short rations for the next month."
8.29.2009 9:42pm
Jon Roland (mail) (www):
This discussion if failing to address the fundamental question of what "due process" is and is not. Is it "due process" to legislatively disable a right for a class of persons defined administratively and not by a court order of a court of the same sovereign? No, it is not. Due process requires that to disable a right the disablement of that right must be sought in a petition to a court under a statute that creates a jurisdiction for that court to disable on proof that some condition has been met: either conviction of a crime for which the disablement is specified as one of the penalties, or that the defendant, if the exercise of his right is not disabled, presents a clear and present danger to himself or others (in other words, he is dangerously uincompetent). the only crime that may properly be prosecuted for violation of such a disablement is contumacy, or violation of the court order, and then only in a court of the same sovereign, not in a federal court for disablement in a state court.
8.29.2009 9:53pm
Paddy (mail):
Isn't a felony derived from common law where a convicted felon would have his property confiscated, and therefore (?) his voting/ civil rights taken away?
Now I hold property as high or higher than other unaliable rights, so find this rather drastic. But I don't forget that people who commit crimes are anti-social, and I don't think their rights are as unaliable as others. If felon's rights are earned or given back I would not be too displeased, but I will never consider them as good a citizen as their law abiding victims
8.29.2009 10:12pm
ArthurKirkland:

Registration? Nature of the weapon? What applicable regulations?

The same regulations governing firearms possession among all citizens. The non-violent felons should, in my judgment, be treated no differently than the average citizen.
8.29.2009 10:27pm
Larrya (mail) (www):
The same regulations governing firearms possession among all citizens.
"All citizens?" Actually, only half a dozen U.S. states have any gun registration requirement.
8.30.2009 12:47am
Mark Jones (mail):

Is it OK to say that:
-a swindler can't work in the securities industry ever again
-an officer dismissed for excessive force can never work as an LEO again
-a teacher convicted of sex w/ a student can not work as a teacher again
-a convicted pedophile can't open a day care
-a crooked lawyer can't practice law


I'd say yes. Securities brokers, LEOs, teachers, and lawyers all have to be licensed by the authorities to practice their trade. Day care operators probably have to as well in many (most?) jurisdictions. Having violated your ethical, moral and/or legal duties under said licenses, I have no objection to the authorities refusing ever again to give you said license.


In these cases, you're permanently prohibited from pursuing what may be the only livelihood you know. Is that more or less severe a restriction than prohibiting firearms to violent criminals?


I'd say it's less severe. A license to practice an occupation won't help protect you from violence the way a handgun will. Nor is a license to practice an occupation a Constitutional right; RKBA is. Depriving you of your RKBA therefore is (or should be) a bigger deal.
8.30.2009 2:43am
Brett Bellmore:

The 4th Circuit has said time and time again the the PFF (federal offense) is a "regulation" and not a "punishment," therefore holding pre-PFFelons accountable to this law does not violate ex post facto clause.


This is what's known as a "legal fiction". The defining characteristic of a legal fiction, of course, is that it's false.
8.30.2009 7:43am
ReaderY:
State v. Dawson, 272 N.C. 535, did specifically find an individual right. It effectively held that the state constitutional provision contains both a state right to have and regulate a militia and an individual right to keep and bear arms. Moreover, they placed the "fairly and reasonably" standar it articulated and which was used in the Britt case in the specific context of determining the scope of the individual right.



North Carolina decisions have interpreted our Constitution as guaranteeing the right to bear arms to the people in a collective sense--similar to the concept of a militia--and also to individuals. Accord, Nunn v. State of Georgia, 1 Ga. 243 (1846). These decisions have, however, consistently pointed out that the right of individuals to bear arms
is not absolute, but is subject to regulation.

In State v. Kerner, 181 N.C. 571 (1921), it was held that a
public-local law which prohibited one from carrying a pistol off his premises in Forsyth County without a permit (even though the pistol was not concealed) was unconstitutional. In the opinion, however, Clark, C. J., was careful to point out that an individual's constitutional right to bear arms was subject to
reasonable regulation. He said: "It would also be a reasonable regulation, and not an infringement of the right to bear arms to prohibit the carrying of deadly weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror, which was forbidden at common law. These from a practical standpoint are mere
regulations, and would not infringe upon the object of the
constitutional guarantee, which is to preserve to the people the right to acquire and retain a practical knowledge of the use of firearms." Id. 181 N.C. at 578. In a concurring opinion, Allen, J., and Stacy, J. (later C. J.), pointed out that to require a person to secure a permit before taking his gun off his premises--
particularly in an emergency--was an unreasonable regulation. They said: "The right to bear arms, which is protected and safeguarded by the Federal and State constitutions, is subject to the authority
of the General Assembly, in the exercise of the police power, to regulate; but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety." Id. at 579.
8.30.2009 10:59am
pintler:

I have no objection to the authorities refusing ever again to give you said license.


I should note that restrictions frequently go well beyond licensing - the pedophile can't go to the city pool on a hot day, perhaps, and the gang member can't visit the only friends he's ever had (BTW, I'm not suggesting sympathy for that - they earned their sentence).


A license to practice an occupation won't help protect you from violence the way a handgun will. Nor is a license to practice an occupation a Constitutional right; RKBA is. Depriving you of your RKBA therefore is (or should be) a bigger deal.


I dunno - to cite an extreme case, if you gave the pedophiles under the bridge a choice of:
-RKBA while living under the bridge
-no RKBA, and able to live in a normal house and get a normal job
I'm not sure a majority would go for option 1. Even considering only safety from violent attack, it's not clear homeless w/ a gun beats in a house w/o.

I should also emphasize, I have no problem w/ tax cheats or for that matter pedophiles having guns. I'm a lot less sympathetic to the armed robber saying he needs to defend himself. He has his rights, but given recidivism rates, so do his potential victims.
8.30.2009 11:12am
Mark Jones (mail):

I should also emphasize, I have no problem w/ tax cheats or for that matter pedophiles having guns. I'm a lot less sympathetic to the armed robber saying he needs to defend himself. He has his rights, but given recidivism rates, so do his potential victims.


There's something to that. My point, which may have gotten lost in the details, is that I object to post-sentence restrictions on rights for felons. If you're actually in prison, or have paroled for the remainder of your sentence, I don't think being unable to vote or own a gun is unreasonable. They let out of prison when they didn't have to; follow the rules, or go back.

But once you've served your sentence, I think you should regain those rights. If we're seriously worried that ex-cons with a history of violent crime will go back to being violent criminals in such cases, well, that's a sign that we should have given them longer sentences in the first place--not a reason to deny them their rights for life, even after the sentence has been served.
8.30.2009 12:03pm
pintler:

My point, which may have gotten lost in the details, is that I object to post-sentence restrictions on rights for felons.


To clarify also, I object to ex post facto restrictions, but not to a law that says 'if you mug people after today, you will be sentenced to a term between 5 years and life, and can never own weapons again (except possibly asking at some future point after years of exemplary living)'. It's not a gun thing to me; want your license back after a DUI? Stay sober for a while. That's a good example in fact - IIUC, typically your license is suspended for a fixed term following a DUI. If that term has expired, should your license be reinstated even though the evidence is that your booze problem is as bad as ever?

Or consider someone who gets in a bar fight - let's say it was mutual combat, but he kept kicking long after the guy was down, and gets 10 years for 2nd degree murder. He is released, but in the 5 years after release commits 4 more misdemeanor crimes that show evidence of severe anger management problems (assaults, road rage, etc). I think it's OK if he asks for his RKBA back, and gets told 'avoid assaulting anyone for a few years and get back to us'. I just don't see the injustice.

I get that people can reform - I have read several biographies of teenagers in the 1930's getting caught stealing cars or whatever and getting to choose jail or the Army, and going on to serve with enough distinction that I'm reading their bio :-). But our hypothetical guy that can't seem to go two years w/o beating someone up? He needs to demonstrate he has changed.
8.30.2009 2:39pm
M. Simon (mail) (www):
I'm interested in learning if there were amicus briefs on behalf of Plaintiff by any organizations who can now be accurately characterized as "wanting to give convicted drug dealers guns!"

I'm against this sort of thing. They should have to buy them just like every one else.
8.30.2009 5:19pm
Bob in SeaTac (mail):
Mark Jones at 8.30.2009 12:03pm

Parole is part of the sentence. When parole is over, then they can get or petition to get their rights back.
8.30.2009 6:21pm
Jerry in Detroit (mail):
My training officer, a prominent attorney, told us that felonies are crimes eligible for the death penalty. Without the death penalty, the crime is a misdemeanor irregardless of what they call it. I've often wondered if someone might challenge many laws on the basis of sloppy semantics alone.
8.30.2009 7:32pm
chris m (www):
Considering that wearing a mask in public is a felony in VA (§ 18.2-422.), The idea of keeping felons from owning guns is horses**t.

Sorry but any man that is too dangerous to be trusted with arms is too dangerous to walk the streets a fee man. Cars, knives, bats, clubs, poisons, water, bricks, rocks, swords and any number of other objects can be and are used to kill and they are not restricted in any way for ownership by felons.

Yet the one and only physical item that is guaranteed by the US Constitution is for some reason taken away from felons and shockingly even legal minds here seem OK with this. I suppose that the plain language of "shall not be infringed" is lost on some people.
8.31.2009 5:19am
wrangler5 (mail):
I know this forum is frequented by lawyers (like me) but let's not lose sight of the real world - it's likely, if not certain, that the people who pose a real threat of using firearms against law-abiding citizens are almost never deterred from such use by a legal prohibition on possession. So in my view, the felon in possession rules are primarily just a tool to lock somebody up that you don't like but who hasn't done anything truly evil that you can otherwise lock him up for. (No sexist intent here - isn't it almost always males that are caught in this net?)

In my view, laws that visibly do not work (most of the drug laws being the most notable examples, but I put felon in possession laws in the same category) tend to bring contempt on the law in general and so are counterproductive to an orderly society. So I'm with chris m and others - if you are too dangerous to your neighbors to be allowed to possess a gun then you are too dangerous to be out of confinement. Anything else is mostly eyewash (i.e. headline pandering or avoidance.)

And on the subject of felonies-that-aren't-really, wasn't there a thread here some time ago about a fellow who married a 16 year old legally in State 1, then they moved to State 2 where the legal age was 18, and he was prosecuted in State 2 for statutory rape of his wife?
8.31.2009 12:30pm
pintler:
(one of several comments like:

if you are too dangerous to your neighbors to be allowed to possess a gun then you are too dangerous to be out of confinement.


What if you invert the question? Say we all agree that Adam and Bob are too dangerous to be free, or have a gun. But the prisons are overcrowded, and we are given a mandate to release one or the other. We think Adam is less dangerous than Bob (although still too dangerous to release - but we must release someone). We have two choices:

a)release Adam and say 'go ahead and buy a gun if you want, and if the victims you almost killed don't like it, they need to man up and realize your rights matter more'
b)release Adam and say 'in light of your history, we're grudgingly letting you go, but for now, keep away from guns because, remember, the last time you messed about with guns it didn't work out so well for either you or your victims'.

Given those two choices, 'a' is better?

(again: I agree we have too many crimes, too much felony creep, etc - I'm addressing the worst violent crooks here)
8.31.2009 3:25pm
Mark Jones (mail):
If we all agree that Adam and Bob are both too dangerous to release, then how about we release Chuck (drug possession) or David (filling in a wetland on his own property or some other stupid "felony" of that kind) instead? There are lots of "felons" who are not a danger to anyone; enough, I'm certain, that we shouldn't ever have to release Adam or Bob to relieve prison crowding.
8.31.2009 3:59pm
Jeffrey Lebowski:
Consider Matthew J. Cochran's argument that the Act runs afoul of the U.S. Constitution:

Here is the abstract:


The question for North Carolina (in light of the District of Columbia v. Heller decision) is whether the Felony Firearms Act in its current form - which outlaws all gun possession by persons having any felony conviction- represents a constitutional response to gun violence, or whether the State's decision to dispossess all felons of all firearms in all places is instead a policy choice which the Constitution, through Heller's recognition of a fundamental right of self-defense, has taken off the table.

Put quite simply, this article assumes the Fourteenth Amendment's Due Process Clause protects an individual, fundamental right of self-defense. It further assumes that application of strict scrutiny to any law infringing this fundamental right is appropriate, in keeping with the Supreme Court’s multitudinous Fourteenth Amendment substantive due process holdings. With these assumptions in place, I argue that the Felony Firearms Act is such a law and that it fails such scrutiny.

More particularly, this article explores the Felony Firearms Act's legislative history (spanning almost four decades), considers the legislature's purpose in creating and enforcing the Act (while critically evaluating potentially-assertable state interests); analyzes the Act's current text; and evaluates its effectiveness in statistical terms - all in order to determine whether the limitations the Act places on individuals' exercise of the fundamental right of self-defense are narrowly tailored toward achieving a compelling State interest.

In its current form, North Carolina's Felony Firearms Act infringes on that fundamental right by denying an impermissibly broad classification of individuals the ability to acquire, own, control, or otherwise possess a firearm - even in their own home, faced with a life-threatening conflagration; even when the person whose rights have been deprived has done shown a flawless respect for the law for the past forty years; even when that person’s original "felony" was nothing more than an innocuous violation of a technical rule; even when other, comparatively more violent criminals get to keep their firearm.

The Act's objectives, however, can be substantially realized through a more narrowly-tailored legislative approach. Through looking at several lawmaking examples (discussed in detail in the article), we see that the General Assembly is indeed capable of more careful statutory craftsmanship.

8.31.2009 5:35pm
Jeffrey Lebowski:
For some reason, the link to Mr. Cochran's article in the above post didn't work. This is the address: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1386182
8.31.2009 5:44pm
pintler:

There are lots of "felons" who are not a danger to anyone; enough, I'm certain, that we shouldn't ever have to release Adam or Bob to relieve prison crowding.


If we never have to chose the lesser of those evils, great, but the hypothetical is what to do when we do face that choice. I am 100% on board with:
-legalizing many things, like sex and drugs
-rolling back felony inflation
-not having firearms restrictions even for non violent felonies

I am objecting the notion that it is always categorically wrong to ever tell someone they can't own firearms, when they have been convicted of serious violent crime.

Here's an example: we had a high profile shooting a few years ago. The gentleman in question had two prior violent felony convictions - one for assaulting a man with a pool cue (I don't know the details) and in the other, a police officer noticed him harassing other drivers, and when he was pulled over he responded by emptying his revolver at the officer (fortunately, he was so blind drunk he missed, and the stray bullets didn't hit anyone else). Both convictions resulted in a few years in prison (later, he got on the front page by initiating another gunfight w/ an officer, and losing).

I think we'd agree that opening fire is not an acceptable response to being pulled over. Perhaps a life sentence is appropriate. But if - for whatever reason - he ends up serving less than a life sentence, why not tell him guns are a no-no for him? If he has a good reason - he gave valuable info against former colleagues and they are hunting him - we can address that on a case by case basis. But to say it's morally wrong to tell him he can't just go into the sporting goods store and stock up the day after he's let out?

I think that people are muddling more than one issue here - is it right to bar people from ever owning guns because they found an eagle feather hiking and took it home? No way. Because they cheated big time on their taxes? Probably not. Because they liked to pull a mask over there head and climb through single women's windows and use a gun to threaten women into compliance? I'm sorry that that subset of people has a self defense problem, but they should have thought about that first.

Firearms are the great equalizer. There are some people who, as a result of their prior behavior, should be on the wrong end of a force differential.

I also agree that felons, being who they are, will likely ignore that law. That doesn't mean we have to make the police give the gun back when we do catch them.
8.31.2009 7:47pm
Soronel Haetir (mail):
If we are to the point of choosing between Adam and Bob, I would prefer that one get the needle.
9.1.2009 1:46am
Mark Jones (mail):

But if - for whatever reason - he ends up serving less than a life sentence, why not tell him guns are a no-no for him?


Not to put too fine a point on it--because I don't trust the state (in the form of human legislators or bureaucrats) not to abuse that authority.

If a "felon" was reliably identifiable as someone who'd committed murder, rape, armed robbery, arson, or something of the kind, I might be amenable to lifelong deprivation of the RKBA. But the meaning of "felony" has been so inflated that many, many people who are no serious danger to their fellow men have been permanently denied the RKBA and/or the right to vote. The Lautenberg amendment _retroactively_ deprived many otherwise law-abiding citizens of their RKBA over misdemeanors which in many cases had happened decades earlier (and to which some might not have pled guilty if they'd know this would be the result).

You'd think that kind of law would be tossed out on at least two grounds (2nd amendment and/or expost facto), but you'd be wrong. Apparently it's kosher, at least for the foreseeable future. And there's nothing, therefore, to say that it couldn't be extended to other misdemeanors by RKBA-hostile legislators in the future.

So, no, I'm not prepared to accept lifetime loss of the RKBA even by violent ex-cons. If they have to stay in jail longer (or for life) because we can't trust them, well, that's their own fault.
9.1.2009 2:04am
R. G. Newbury (mail):
Pete wrote:
"The problem is that too many crimes carry the consequences of felonies that should not."

And here is a fine example of municipal stupidity:

*****************
Apartment Landlord's Notice to Residents
"Attention Residents:

The City of Kalamazoo Public Safety Department has informed us that most gas grills are not allowed on our balconies.

Excerpt from Section 308 Open Flames
"308.3.1 Open Flame Cooking Devices. Charcoal burners and other open-flame cooking devices shall not be operated on combustible balconies or within 10 feet (3048 mm) of combustible construction."

"308.3.1.1 Liquefied-petroleum-gas-fueled cooking devices. LP-Gas burners having an LP-gas container with a water capacity greater than 2.5 lbs(nominal 1 pound [0.454 kg] LP-gas capacity) shall not be located on combustible balconies or within 10 feet (3048 mm) of combustible construction.

What this means is that all residents will need to immediately remove any gas grill that has a large propane tank on it. Small grills with a 1 pound tank will still be allowed. If you are unable to remove the entire grill at this time, you must remove the LP tank from the property. Any fines assessed to our property for these violations will be charged to the tenant in violation.

***Also, please be aware that violations of this city code can result in a felony conviction.***

**************

So, using your BBQ with too large a propane tank, can result in a life-time RBKA ban?

Seriously mind-boggling!
9.1.2009 11:08am

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