Skip to comments.Fifth Circuit continues to take Second Amendment seriously
Posted on 04/07/2005 10:54:16 AM PDT by jdege
Posted by David Hardy · 6 April 2005 04:12 PM
In United States v. Everist, 368 F.3d 517 (5th Cir. 2004), the issue was a challenge to the Federal bar on felons in possession. The Circuit, citing its earlier ruling in Emerson, upheld the bar, noting:
The Second Amendment right is subject to "limited narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id . at 261. It is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.
Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens. See id. (noting that "it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"). Accordingly, § 922(g)(1) represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment.*fn1 Everist's constitutional challenge to § 922(g)(1) fails.*fn2
*fn1 We need not decide whether the Second Amendment's boundaries are properly defined through strict scrutiny analysis, though it remains certain that the federal government may not restrain the freedom to bear arms based on mere whimsy or convenience. See Emerson , 270 F.3d at 261.
To my thinking, jurisprudence like this is critical to establishing the Second Amendment as a viable legal force. It cuts off the argument that "well, if we do recognize a right to arms we'll have to let convicted bank robbers pack, or allow heat-seeking missiles and thermonuclear devices." Which is roughly equivalent to "If we recognize freedom of speech and press we'll have to protect blackmail (which is no more than accepting money for not speaking), extortion notes, and death threats to the president." (Though I once did have a law prof. who made an interesting argument that the last is first amendment protected.).
In future posts I intend to develop this further, but right now I've got to stop for a while and practice law.
You don't need to declare that there is no individual right to keep and bear arms in order to forbid convicted felons from possessing firearms.
It was Tot that invented the idea that Miller declared that there was no individual right, and from which all subsequent case law has derived.
And it's Tot - not Miller - that needs to be reversed.
I'm not so sure this is a win. If a felon can't be trusted with his rights, then shouldn't that person still be imprisoned? I don't see any Constitutional provision for citizens with partial rights.
There should be a </sarcasm> tag somewhere around here...
I'm the evil libertarian that sides with criminals, of course. It's my designated role. We all know no good citizen would ever be caught afoul of the law.
P.S. If you find that sarcasm tag anywhere, please send me a link!
What about Megan's Law?
You might be interested in the docs regarding the Miller decision. It has more information about the history of it than you'll find just about anywhere.
A felon can lose access to his Rights via due process. It's in the Constitution. We don't need yet another ruling that someone can use to obfuscate the issue. Our judiciary and legislators just need to start taking the Constitution at face value. Period.
Yeah, but criminals were different before the 1968 GCA. (/sarcasm)
"it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"
Couldn't help but crack up at the infants part. I agree though.
"Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens."
If he is a threat to his fellow citizens with a firearm then he is also a threat to his fellow citizens with a knife, a baseball bat, and a motor vehicle. Why was he released from prison if he's a threat?
That's an argument, but not one for this case. The legislature can vote to deprive a felon of any number of constitutional rights including the right to own a gun, the right to vote, the right to live outside of a prison. The prison sentence may be shorter than the amount of time it takes to fully restore his liberty. It is all part of the punishment.
I don't disagree with the concept of non-prison penalties. I will simply note that the Second Amendment contains no such exception, and specifically states that there should be no law to abridge that right.
The reason there is a problem is that there are too many felonies, especially non-violent felonies, which is what this case was about specifically. So it came down to this court not wanting to invent "felony lite." They took the safeest, least disruptive way out.
We are getting to the point, however, where too many people are felons for insufficent reason - mainly to scare the rest of us into complying with otherwise unenforceable laws.
in being punished for a felony, a felon is deprived of a range of rights, none of which is made exception for in the BoR, starting with the basic deprivation of liberty in prison.
We just have to make sure we roll back "felony creep."
That is my thought as well.
The second Amendment, being part of the Constitution, is a enumerated, or POSITIVE right.
'Shall not be infringed' would mean the government cannot restrict anyone from exercising their NATURAL right to defend themselves, for any reason.
The media is always saying the phrase 'paid his/her debt to society' when someone is released from prison.
If they've already paid, why continue to punish them?
If they haven't paid enough, why release them?
Infants is a legal term, meaning those considered to be legally under-age (under 18, for example). It is a term often used in contract law indicating that one of the parties to the contract is unable to enter the contract due to the age of that party.
Oh, ok. Still funny, though.
Why should the penalties of felonious conviction be limited to the inside of a prison? For me, the "public protection" aspect is secondary to retributivism. Part of the punishment, for instance, would be a set amount of time in a cell, and another part would be prohibition of arms ownership for a time when released from the cell.
I'm perfectly willing to entertain arguments concerning the utility of restrictions on firearms possession by felons. Or the futility of such restrictions, if you'd rather.
But I don't see grounds for an argument of right. We inflict punishment on indiduals who are found guilty of crimes. The only constitutional arguments against making a disability on firearms possession a part of that punishment would be that it violated due process, or constituted cruel and unusual punishment. That it would violate the RKBA simply makes no sense.
No, it's *not* all part of the punishment. In fact, the reason that the courts allow these sorts of additional restrictions on felons--restrictions that were written into law long after many felons committed their crimes and served their sentences--is because these aren't considered punishments at all. They're considered public safety measures. As I'm sure you're aware, any ex post facto increase in a person's punishment is unconstitutional, hence we resort to redefining obvious punishment as a public safety measure. Voila! Nice easy Constitutional sidestep. Of course, as and added convenience to allowing the sidestep to continue, felons often aren't even allowed to vote to have these (un)-unconstitutional laws changed.
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