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.
A loophole you could drive a truck through. If this court ever actually strikes down a particular restriction instead of just paying lip service to the 2nd Amendment, I'll shit a brick.
An ex post facto law is one imposing a punishment retroactively, i.e. applying to crimes committed before the law was passed. It has nothing to do with the situation we are discussing.
And while you are right that the law keeping felons from possessing firearms was passed largely because of a public safety rationale, I think it can be justified as part of a felon's punishment, like taking away their right to vote.
But he specifically referred to those whose felonies were committed before the passage of the gun-ban-life law, yet it is still applied to them. How is that not ex post facto?
My bad Sandy. I read your post too quickly. It is ex post facto as applied to felonies committed before the passage of the gun-ban-life law. I would be interested to know when that law was passed. Do either of you know?
Here's another thing about the act which actually goes against my original argument that it is part of the punishment. The federal Gun Control Act of 1968 made it a crime for anyone convicted of a felony to possess a handgun. I am unaware of an instance where the federal government has the power to impose punishment for a crime convicted on the state level. So the statute would have to be based entirely on a public safety rationale.
So Sandy is right. This law is bogus, although I think you could justify a state law applying to state cases and a federal law applying to federal cases depriving a felon of his 2nd amendment rights for a period of time as part of the punishment.
Excellent point. I should have caught that. Even more egregious in the same vein: treating people as felons for the purposes of this law for breaking the law of a foreign country. (ie, the Texas case of a gun dealer whose gun right were forfeited because he was charged in Mexico for driving across the border carrying a few rounds).
I think you could justify a state law applying to state cases and a federal law applying to federal cases depriving a felon of his 2nd amendment rights for a period of time as part of the punishment.
Okay, I'll go along, as long as the forfeiture is for a fixed period of time and proportionate to the severity of the felony (with life forfeiture OK for extremely serious crimes such as murder rape, kidnapping, etc.). If that's to be done, the states should be required to reclassify at least 70% of their felonies as misdemeanors, or we could create two classes of felonies, one of which would not count from a gun rights perspective.
bump for later discussion
Except that it *isn't* being applied to the earlier-committed felonies, at least according to Congress and the courts. Nope, the person is only being punished for the crime of being a felon in possession. It only *looks* like he's being re-punished for the earlier crime. Of course it's insane imho that something that looks so obviously like a punishment can be considered by our government to be something completely different. We're seeing the same thing more recently where persons convicted years earlier of *misdemeanor* domestic violence are being required to give up their guns and/or can't buy new guns because of the prior convictions. And now there's stuff like Megan's Laws, where registering as a sex-offender years after a person has served a sentence isn't considered to be an added punishment. Nor is putting a sex-offender into a mental ward years after he served his time considered to be an increase in punishment. Call it anything, but don't call it punishment, because after-the-fact increases in punishment are exactly what the Ex Post Facto Clause forbids. That was really my only point.
That's true, but the blanket ban on felons having the RKBA may not be proper due process, on two counts. First it may be that the removal of rights must be as part of the individual trial and sentence. Secondly, and related, is the "retroactive" nature of the "punishment". That is, people whose felony convictions predate the law banning felons from possessing firearms may have a good argument that it is an ex post facto law.
That's fine if it's part of the individual sentence arrived at after proper due process. Of course the current "punishment" is not "for a time", it's forever. Theoretically a felon can petition for restoration of the RKBA, but currently BATFE, and the rest of the federal government, is forbidden from spending any money on such restoration proceedings.
Another problem is that the prohibition is a federal one, but the felonies are most often state crimes. The crime not need even be defined as a felony in the state where it occurred, the federal law just says "punishable by more than one year in year", it also doesn't matter that a jury (in those states where the jury decides the punishment, within some limits) might only have required a fine.
Then there is the question of losing the RKBA due to a mere "domestic violence" restraining order, irregardless of whether any crime at all had taken place, and issued with a bare minimum of due process.
I'd say they both need to be reversed. Miller stands for the notion that some sort of legislative "infringement" of the RKBA is allowed, based merely on the character of particular arms. It dealt with the National Firearms Act, and specifically with short barreled shotguns. Why should the right to keep and bear a perfectly good home defense firearm be subject to such legislative fiat? It's also fodder for those judges and justices who want to read "right of the people" as "right of the militia" and then, often as not, define the militia as the National Guard.
Actually it's not a positive right. If it were a postive right, the government would have to provide everyone with arms. Not a bad idea, perhaps, but not what the second amendment means or says. What it is a negative right, that is it forbids the government from infringing on a pre-existing natural right.
If it's not due process punishment for a crime, then it must be a public safety measure, but it's also then an infringement on the right to keep and bear arms.
The Congress and Courts just use whichever rational allows them to do what they choose, Constitution be damned.
The argument of right comes in conjunction with the requirement for due process to remove that right. If it isn't a right, including a 9th amendment right BTW, then problems of ex post facto and/or due process don't come in....although it might be then be considered a bill of attainder directed at a particular class or group of people, but probably not.
'Shall not be infringed' would mean the government cannot restrict anyone from exercising their NATURAL right to defend themselves, for any reason.
This is why laws that a felon caught wearing a bullet proof vest is guilty of a felony are wrong.
Yes, it is. A positive right is written under positive, or man made law:
law.com
positive law
n. statutory man-made law, as compared to "natural law," which is purportedly based on universally accepted moral principles, "God's law," and/or derived from nature and reason.
The right that anyone has to defend themselves is a natural right. Natural rights are given to us by natural law, or the law of Nature and Nature's God.
law.com
natural law
n. 1) standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will. The biblical Ten Commandments, such as "thou shall not kill," are often included in those principles. Natural law assumes that all people believe in the same Judeo-Christian God and thus share an understanding of natural law premises.
2) the body of laws derived from nature and reason, embodied in the Declaration of Independence assertion that "all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of happiness."
3) the opposite of "positive law," which is created by mankind through the state.
What the second amendment does is to give us a SPECIFIC means to defend ourselves (firearms) that cannot be taken away by government.
shall not be infringed
Now the phrase negative right seemed contradictory on its face. Just to be sure, I checked for it, and it isn't listed in any of these On-line Legal Dictionaries, nor is it a phrase I've ever come across.
Is it really? I didn't know that!
Not in all states.
Here is one.
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The part that says "except as a punishment for crime whereof the party shall have been duly convicted" means that a convicted criminal can be judicially enslaved (made a slave).
If a convicted criminal can have all rights removed, by being reduced to the status of property, that criminal can have any and all other rights selectively removed.
I didn't say I agreed with the policy, only what the Constitution states. Used to be, Sheriff let you out of the pokey, you got your six guns back. Of course, more good guys were "allowed" to ventilate the bad guys back then as well.
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