Free Republic
Browse · Search
Bloggers & Personal
Topics · Post Article

Skip to comments.

Does the Second Amendment protect non-violent felons?
Monachus Lex ^ | April 11, 2012 | John Pierce

Posted on 04/11/2012 2:23:17 PM PDT by JohnPierce

The answer, according to the Wisconsin Court of Appeals, is “No”.

The court ruled today against Thomas Pocian, who, in 1986, was convicted of felony forgery. Subsequently, in 2008, Pocian shot two deer with a rifle borrowed from his father. After reporting the deer to the DNR, he was charged with being a felon in possession of a firearm in violation of Wisconsin Statute § 941.29. The trial court convicted Pocian and he appealed based upon both constitutional overbreadth and as-applied challenges to the statute.

(Excerpt) Read more at monachuslex.com ...


TOPICS: Government; Politics
KEYWORDS: felons; secondamendment; wisconsin
The "presumptively lawful" category of regulations from the Heller opinion continues to be a problem. :(
1 posted on 04/11/2012 2:23:24 PM PDT by JohnPierce
[ Post Reply | Private Reply | View Replies]

To: JohnPierce

Considering the ever expanding range of crimes considered to be felonies all of us better be concerned.

As far as I’m concerned, if you aren’t in jail or prison, anyone should be allowed to carry.


2 posted on 04/11/2012 2:29:40 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: JohnPierce

This is somethign the NRA will eventually need to take on. It’s just not at the top of the list right now, imo.


3 posted on 04/11/2012 2:30:00 PM PDT by mamelukesabre (Hello, I'm a TAGLINE virus. Please help me spread by copying me into YOUR tag line)
[ Post Reply | Private Reply | To 1 | View Replies]

To: JohnPierce
Under that standard, a statute passes constitutional muster if it is “substantially related to an important governmental objective.” Citing United States v. Williams, 616 F.3d 685 (7th Cir. 2010), the court held that public safety is an important governmental objective and denying firearms to convicted felons is substantially related to that objective.

Williams went so far as to state unequivocally that even an absolute ban on the possession of firearms by felons passes constitutional muster.

Says it all right there.

FMCDH's!

4 posted on 04/11/2012 2:33:11 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 1 | View Replies]

To: JohnPierce

The question goes back to the Constitution itself. Where does it line out that someone convicted of a crime loses constitutional rights?

There is plenty of strength to both sides of the argument - if someone’s crime was non-violent - then why should it result in the loss of constitutional rights? On the other hand - one makes the decision to commit a felony - the loss of rights, including 2nd Amendment rights, should make one reflect on that decision.

Yet there is another aspect as well - someone gets caught up in something - they may not have been directly responsible, but because of the position, end up with felony charges as part of the “blow-back”... they lose firearm rights?

Some food for thought and discussion.


5 posted on 04/11/2012 2:33:42 PM PDT by TheBattman (Isn't the lesser evil... still evil?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: mamelukesabre

One of my law professors noted that in 1791, felonies MEANT something but that today more and more misdemeanors are being converted to felonies. :(


6 posted on 04/11/2012 2:34:13 PM PDT by JohnPierce
[ Post Reply | Private Reply | To 3 | View Replies]

To: Las Vegas Ron
“substantially related to an important governmental objective.”

That is chilling all by itself.

7 posted on 04/11/2012 2:40:03 PM PDT by 11Bush
[ Post Reply | Private Reply | To 4 | View Replies]

To: JohnPierce

Its a scam...make the laws such that we are all felons waiting to be caught and then the government can take anyone’s rights away as they see fit. What this does is negate the constitution. No longer are we endowed with unalienable rights. We are now granted our rights by a benevolent authority until such time the authority sees fit to revoke them.

See? Nice little trick, eh? THere’s more than one way to skin a cat and there’s more than one way around a constitution and there’s more than one way to enslave a citizenry.


8 posted on 04/11/2012 2:45:13 PM PDT by mamelukesabre (Hello, I'm a TAGLINE virus. Please help me spread by copying me into YOUR tag line)
[ Post Reply | Private Reply | To 6 | View Replies]

To: JohnPierce

Depending on how fast and how they charge you, you can become felon for speeding.


9 posted on 04/11/2012 2:46:04 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
[ Post Reply | Private Reply | To 6 | View Replies]

To: 11Bush
Let's say the Leftwingtards win a few and one of the most imortant 'governmental objectives" is the provision of free condoms.

So, start measuring laws about guns to the provision of condoms ~ as ridiculous as that might sound, that becomes a defense ~

10 posted on 04/11/2012 2:47:05 PM PDT by muawiyah
[ Post Reply | Private Reply | To 7 | View Replies]

To: JohnPierce

I see this as a non-starter issue. After a convicted felon has served their time, and ended their probation, it is very common for them to again voluntarily appear before a judge to request “rights restoration.” Under most situations they do not even need a lawyer.

And it is common and the norm that in most cases, in most states, judges will grant this request. This not only includes the right to bear arms, but the right to vote, the right to sit on a jury, and often expungement, or sealing of the records of their trial and conviction at the state level.

Expungement is the hardest to get but still commonly given to all but career criminals, those facing civil lawsuits, document or identity fraud, theft or forgery, and those whose crimes involved permanent registry, like sex offenders.

By far, the most important rights restoration, as far as ex-cons are concerned, is the restoration of gun rights. Often they are willing to forsake restoration of all these other rights, but they are very aware of the importance of self defense.

Yet many, especially violent criminals and repeat offenders, do not bother to even try rights restoration. Thus they are exposed to additional criminal charges if they do obtain a gun.

So the bottom line is that the system is set up pretty wisely, and doesn’t need a whole lot of adjustment, outside of those die-hard, anti-gun states.


11 posted on 04/11/2012 2:50:12 PM PDT by yefragetuwrabrumuy ("It is already like a government job," he said, "but with goats." -- Iranian goat smuggler)
[ Post Reply | Private Reply | To 1 | View Replies]

To: TheBattman
the loss of rights, including 2nd Amendment rights, should make one reflect on that decision.

Should we also take that into consideration before we speak, exercise our religious beliefs or engage in free commerce?

Today, it appears so.

It is now acceptable to take away 2nd A rights for accusations of stalkiing, midemeanor convictions, mental stability judgements etc....

How far can this go, is the 2nd A a God givien right or not?

The Goernment we supposedly authourize by our consent is taking those rigths away at an alarming rate, are they really rights or no?

12 posted on 04/11/2012 2:50:47 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 5 | View Replies]

To: 11Bush
That is chilling all by itself.

Chills the soul, don't it?

Bastu*ds!

13 posted on 04/11/2012 2:52:38 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 7 | View Replies]

To: TheBattman

A century ago this wouldn’t even have been a consideration.

A while back I found some old prison records from shortly after the civil war. Among the records were items returned to released inmates. Things like knives, clubs, rifles, and revolvers were listed.


14 posted on 04/11/2012 2:57:10 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
[ Post Reply | Private Reply | To 5 | View Replies]

To: cripplecreek
As far as I’m concerned, if you aren’t in jail or prison, anyone should be allowed to carry.

Absolutely, with the laws the way they are going, most of the population will be felons for breaking laws comparable to J walking and be outlawed to exercise 2nd amendment rights.

15 posted on 04/11/2012 3:00:32 PM PDT by EGPWS (Trust in God, question everyone else)
[ Post Reply | Private Reply | To 2 | View Replies]

To: yefragetuwrabrumuy
And it is common and the norm that in most cases, in most states, judges will grant this request. This not only includes the right to bear arms, but the right to vote, the right to sit on a jury, and often expungement, or sealing of the records of their trial and conviction at the state level.

You have no clue what you're talking about, you're absolutely wrong regarding 2nd A rights.

Ask Scooter Libby or Gordon Liddy (he used to joke about his wife buying guns).

Once you are convicted of a felony you are entered into a federal data base, states and feds will not grant them back.....even though they do not have the power to take them in the first place.

16 posted on 04/11/2012 3:00:36 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 11 | View Replies]

To: cripplecreek
Things like knives, clubs, rifles, and revolvers were listed.

A horse and a $20.00 Gold Piece too!

17 posted on 04/11/2012 3:02:34 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 14 | View Replies]

To: 11Bush

And that is the intermediate level of scrutiny. Pre-Heller, they used rational basis review which allowed a regulation to stand if the state could articulate any rational basis for the regulation.


18 posted on 04/11/2012 3:03:53 PM PDT by JohnPierce
[ Post Reply | Private Reply | To 7 | View Replies]

To: EGPWS

Heck, I wouldn’t have put Bernie Madoff in prison. I’d have put him on probation for the rest of his life and made him continue to pay restitution. Its not like he was a threat to society.


19 posted on 04/11/2012 3:10:27 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
[ Post Reply | Private Reply | To 15 | View Replies]

To: Las Vegas Ron

you are mistaken. Many states have a process whereby a convicted felon can have all rights restored, including the possession of firearms. The federal government recognizes the restoration, and there is a process whereby a person can notify the FBI of same, in order that they may pass the instant background check when buying a gun from a FFL.
Unfortunately for people convicted of federal felonies, such remedies do not exist at the federal level. Thus, Gordon Liddy must have his wife collect guns, he cannot.


20 posted on 04/11/2012 3:15:35 PM PDT by cbvanb
[ Post Reply | Private Reply | To 16 | View Replies]

To: cripplecreek
Heck, I wouldn’t have put Bernie Madoff in prison.

Considering what his crimes were, if justice were fair, he would be POTUS for life!

21 posted on 04/11/2012 3:16:48 PM PDT by EGPWS (Trust in God, question everyone else)
[ Post Reply | Private Reply | To 19 | View Replies]

To: Las Vegas Ron

In Michigan your record can be expunged but the county gun board/state police will deny the permit anyway.

Michigan concealed carry info (not all correct)

http://www.usacarry.com/michigan_concealed_carry_permit_information.html


22 posted on 04/11/2012 3:18:41 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
[ Post Reply | Private Reply | To 16 | View Replies]

To: yefragetuwrabrumuy

I see this as a non-starter issue.
~~~~~~~~~~~~~~~~~~

What you are not seeing is that these people must go to a judge and beg for their rights. THAT IS NOT WHAT THIS COUNTRY IS ABOUT.


23 posted on 04/11/2012 3:24:35 PM PDT by mamelukesabre (Hello, I'm a TAGLINE virus. Please help me spread by copying me into YOUR tag line)
[ Post Reply | Private Reply | To 11 | View Replies]

To: cbvanb
you are mistaken. Many states have a process whereby a convicted felon can have all rights restored, including the possession of firearms.

Name one and show me the law. More importantly, show me a case whee it has been done.

http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4DKUS_enUS221US221&q=restore+snd+amendment+rights

24 posted on 04/11/2012 3:35:14 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 20 | View Replies]

To: mamelukesabre
What you are not seeing is that these people must go to a judge and beg for their rights. THAT IS NOT WHAT THIS COUNTRY IS ABOUT.

Grand slam FRiend!

25 posted on 04/11/2012 3:37:10 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 23 | View Replies]

To: Las Vegas Ron

Constitutionally - the government has the responsibility to PROTECT and DEFEND our rights (rights are God-given).

Constitutionally - when does a person “qualify” to have rights stripped?

Further - if a felon has paid his/her complete debt to society... then why do they still not have their Constitutional rights? They still have the right to trail by a jury of their peers. What is with the selective stripping of rights?

Further - if we actually dolled out justice as it was done when our Bill of Rights was written - then a lot of those violent felons we strip 2nd Amendment rights from would be a moot point, because they would have been hanged by the neck until dead... dead men need no rights.

IF a person is such a danger to society WITH their 2nd Amendment rights in effect, then maybe they shouldn’t be IN society in the first place. A danger is a danger.


26 posted on 04/11/2012 3:39:26 PM PDT by TheBattman (Isn't the lesser evil... still evil?)
[ Post Reply | Private Reply | To 12 | View Replies]

To: TheBattman
Constitutionally - when does a person “qualify” to have rights stripped?

Never, except under due process.

BTW, I was agreeing with your post, was just pointing out the absurdities of the law....just to be clear ;)

27 posted on 04/11/2012 3:45:02 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 26 | View Replies]

To: Las Vegas Ron

NYT 11-14-2011 article entitled “Felons Finding It Easy To Regain Gun Rights” lists specific individual felons and the states they live in where they had their 2A rights restored.

http://www.google.com/search?q=restoration+of+2nd+Amendment+rights+to+felons&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a


28 posted on 04/11/2012 4:22:37 PM PDT by Brent Calvert 03969-030
[ Post Reply | Private Reply | To 24 | View Replies]

To: Brent Calvert 03969-030

LOL...did you actually READ the articlss?


29 posted on 04/11/2012 5:25:21 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 28 | View Replies]

To: cripplecreek

I think any nonviolent felon should not lose 2A rights. Violent felons especially using weapons have shown they cannot be trusted with them.


30 posted on 04/11/2012 5:41:45 PM PDT by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: TheBattman

For me it’s about the punishment fitting the crime.

Violent felon - lose 2a rights. Non-violent felon - you don’t. Punishment ought to fit the crime.


31 posted on 04/11/2012 5:43:35 PM PDT by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
[ Post Reply | Private Reply | To 5 | View Replies]

To: Las Vegas Ron

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01435.htm

(asterisk(*) emphasis mine)

“In accordance with 18 U.S.C. § 921(a)(20), a conviction does not disqualify an individual from possessing firearms if the person convicted “has had civil rights restored.”

“In § 922(g)(1) cases based upon a *State* felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant’s civil rights have been restored and whether such action has nullified the conviction’s incidental prohibition on firearms possession.

“With respect to *Federal* felony convictions, the Supreme Court declared in Beecham v. United States, 511 U.S. 368 (1994), that only Federal law can nullify the effect of the conviction through expungement, pardon, or restoration of civil rights. This is so, the Court ruled, even though there is no *Federal* procedure for restoring the civil rights of *Federal* felons.”

Both Scooter Libby and G. Gordon Liddy were convicted of *federal*, not state charges.


32 posted on 04/11/2012 6:22:29 PM PDT by yefragetuwrabrumuy ("It is already like a government job," he said, "but with goats." -- Iranian goat smuggler)
[ Post Reply | Private Reply | To 16 | View Replies]

To: mamelukesabre

Actually it is not just rights that are denied due to felony conviction. There is a long list of things that are denied felons. Here is a list created by the ABA just to enumerate them (Just look at the table of contents and appendix 3), it is impressive. Note, pdf file:

http://www.abanet.org/cecs/internalexile.pdf


33 posted on 04/11/2012 6:52:10 PM PDT by yefragetuwrabrumuy ("It is already like a government job," he said, "but with goats." -- Iranian goat smuggler)
[ Post Reply | Private Reply | To 23 | View Replies]

To: yefragetuwrabrumuy
if the person convicted “has had civil rights restored.”

Cite a case where it has happened, you cannot, and evidently you will not.

Both Scooter Libby and G. Gordon Liddy were convicted of *federal*, not state charges.

The Constitution strictly prohibits the Government from taking away rights, the 10th prohibits the States from doing the same.

34 posted on 04/11/2012 7:09:12 PM PDT by Las Vegas Ron (Rush Limbaugh = the Beethoven of talk radio - http://www.istandwithrush.org/)
[ Post Reply | Private Reply | To 32 | View Replies]

To: Las Vegas Ron

Arizona for example:
Where are Arizona’s laws about expungement and setting aside a conviction?

Arizona does not presently have an ‘expungement’ statute. The laws about setting aside a conviction are presently found in A.R.S. §§ 13-904 – 912 . A.R.S. § 13-907 permits a person convicted of a felony to request a “set aside” of a felony conviction under certain circumstances. The statutes use the term “set aside the judgment.” An application to have your conviction set aside may use the language “vacate judgment and dismiss charges.” In this situation, “setting aside a conviction,” means the same thing as “vacating judgment and dismissing the charges.”

Texas (which is automatic after 5 years, allows possession in the home):
Texas Penal Code 46.04

§ 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person
who has been convicted of a felony commits an offense if he
possesses a firearm:
(1) after conviction and before the fifth anniversary
of the person’s release from confinement following conviction of
the felony or the person’s release from supervision under community
supervision, parole, or mandatory supervision, whichever date is
later; or
(2) after the period described by Subdivision (1), at
any location other than the premises at which the person lives.

I could go on and on, but you get the idea.


35 posted on 04/11/2012 8:26:00 PM PDT by cbvanb
[ Post Reply | Private Reply | To 24 | View Replies]

To: Las Vegas Ron

>Cite a case where it has happened, you cannot, and
> evidently you will not.

Waitasec, here. You did not ask me that question, I think you were asking cbvanb, and Brent Calvert 03969-030 cited you an article that showed such a case. But I was writing about something different.

> The Constitution strictly prohibits the Government from
> taking away rights, the 10th prohibits the States from
> doing the same.

Uh, no and no. Article 2 of the 14th Amendment was cited by the SCOTUS as rationale for the disenfranchisement of people “for participation in rebellion, *or other crime*”. While “disenfranchisement” is popularly thought of as applying solely to voting, legally it also means civil rights of citizens, and even non-citizens.

Likewise, Article 1 of the 14th Amendment, the “privileges or immunities clause”, is what authorizes federal intervention against states that *violate* the civil rights of the citizens of those states.

That is *if* there was a constitutional provision against denial of civil rights, except by indictment and trial, which there isn’t. States are just as capable of trying people for state offenses as is the federal government for federal offenses. And in either case, on felony conviction, citizens may be denied their civil rights.


36 posted on 04/11/2012 9:26:26 PM PDT by yefragetuwrabrumuy ("It is already like a government job," he said, "but with goats." -- Iranian goat smuggler)
[ Post Reply | Private Reply | To 34 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Bloggers & Personal
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson