Skip to comments.Second Amendment Protects Felon Whose Convictions Were 30 Years Ago(NC)
Posted on 10/28/2011 5:54:54 AM PDT by marktwain
So held a North Carolina trial court in Johnston v. State (Oct. 24, 2011). Richard Johnston had been convicted of felonious receipt of stolen property and conspiracy to commit grand larceny in 1978, and pled no contest to fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact in 1981. (The underlying crimes occurred in 1976, and did not involve either violence or the use of a firearm.) Since then, Johnston has apparently led a law-abiding life, setting aside routine traffic citations and two hunting citations, one of which was dismissed; he is now 69 years old.
The trial court concluded that, when Heller said that bans on felon possession of guns were presumptively valid, this presumption could be rebutted, and in this case it was rebutted, given the age of Johnstons conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didnt have occasion to issue any specific holding on that point.
The court also concluded that North Carolinas firearms rights restoration law which allows firearms rights to be restored only when a person has only one felony conviction, that felony is a nonviolent felony, and the conviction is at least 20 years old violates the Due Process Clause, because it provides no procedural mechanism by which a person subject to it may be heard on the issue of ... her likelihood to commit future crimes of violence using a firearm before being deprived of her fundamental liberty interest (p. 23). (Im not sure that this is a sound argument: If a permanent ban on gun ownership by all felons who have more than one felony conviction is unconstitutional on Second Amendment grounds, the due process analysis is beside the point, but if it is unconstitutional as to certain felons, the objection is to the substantive prohibition and not to the procedure.)
Finally, though the court favorably cites Britt v. State, a 2009 North Carolina Supreme Court case that held that a felon whose crimes were similarly far in the past regained his constitutional right to bear arms, the Johnston decision rests on the Second Amendment, and Britt relied only on the North Carolina Constitutions right to bear arms provision. This makes Johnston potentially more influential in other jurisdictions, assuming it is appealed and affirmed on appeal.
The opinion is also quite long and pretty detailed in setting forth its arguments; if youre interested in the subject, read the whole thing.
As far as I’m concerned, there should be no restrictions. Truly dangerous felons shouldn’t be on the street anyway.
How can the 2nd A be the only one which can be taken away because of a conviction? It is definately unconstitutional to do so.
It’s a left over from the Jim Crow laws, this excuse was used to keep blacks from owning guns.
—As far as Im concerned, there should be no restrictions. Truly dangerous felons shouldnt be on the street anyway.—
I’m with you. That said, I know a 30 year old man that, when he was 18, was hanging out with some other kids and they threw rocks at a school window, breaking it. They were caught and the prosecutor subsequently added some other mischief from the night (all of which happened when this guy was not with the other boys) to get the value of the damage high enough to make it a felony. They then prosecuted him, and only him, for all of it because he was the only one over 18.
This was in a small town where the cops were paid $7.50 an hour and they did NOT like this guy. The judge was also a small town judge who didn’t like him because he was “not from around there”. His family had moved into town when he was 16.
He had a LOUSY attorney assigned and was found guilty. He spent a year in prison. It changed his life and was not justified. Knowing him personally, I think he should be allowed to have a gun. I know a lot of guys that have never seen the inside of a jail that should not have one.
The older I get, the more I see. The more I see, the more I realize that the phrase “life is not fair” is but the tip of the iceberg of great evil that, although personified in regimes like Nazi Germany and the USSR, goes on every day in the cities and towns of all nations. Knowing that can save you a lot of grief.
There is a lot of wisdom in that Kenny Rogers song, The Gambler.
Exactly. Hang the violent and repeat felons. Multiple problems solved.
I find your all or nothing approach unrealistic and illogical.
If you can take a person’s freedom of movement and association away (prison) via due process, then other restrictions as conditions of parole are certainly Constitutional and reasonable.
An 18 year old that commits armed robbery of a gas station might due 5 years in prison and never commit another crime. But I don’t plan on allowing them to carry a gun again for at least 10 years after release. I am then willing to hear their petition for restoration of rights, based on their record outside of prison.
There is a the “slippery slope” argument, but Constitutional Republics exist on slippery slopes. Absolutism is no cure.
As for keeping truly violent convicts locked away, so that firearm possession isn’t even an issue, I’m all for it.
—How can the 2nd A be the only one which can be taken away because of a conviction? It is definately unconstitutional to do so.—
Well, something similar happens with sex offenders. And the bar for that is so low now that if you are 14 and your 14 year old girlfriend sends you a text photo of her naked, and someone discovers it, you can be branded a sex offender the rest of your life. And there are real, legal consequences.
And when the “real” sex offenders get out of jail, the “they did their time” concept does not apply. It goes far beyond gun ownership.
Don’t get me wrong. I think REAL sex offenders should simply be castrated and do no time whatsoever, but the concept of still “doing time” after you have done your time for ANY crime repulses me. It would be a VERY good reason to learn Spanish and head south permanently.
What about all the fathers with child support orders? No, not me, all my kids are 18+. In this economy, they lose their job. Courts won’t lower support assessments, they wind up in jail for violating court orders. Debtor prison has come to Amerika.
This even happens to men in the service overseas. They come home to hell, usually unleashed by a wife and her female friends. The wife in the absence of the husband, cannot wait, and well her friends set her up, the rest is history.
Yes that and control of the rest of us. You know make as may things illeagal as possible. Then we will all be crimminals
Rights are Rights. The government did not do this when the country was started. Only when they wanted to control us and then they, the politicians, said to hell with the constitution we will do what we want.
I think an 8th Amendment case could be brought into the restrictions. The way I see it, the person was caught and sentenced to a certain amount of time. That is his punishment. To continue punishing someone after you deem them ready to reenter society seems to be contrary to the idea of no excessive, cruel, or unusual punishments. If he cant be trusted to vote or own a gun, then he cant be trusted to be let out of jail.
Then why release them as citizens? If you dont trust them to be able to handle their rights, then you should not release them. If the punishment is meted out by the judge or jury, why does a parole board (not mentioned in the Constitution) get to add additional punishments upon release?
Release conditions aren't additional punishment. If the law states, "Felons cannot own or possess firearms.", it is clearly an original sentence from being found guilty. A lifeling sentence of lost rights (voting, firearms) and a defined sentence of confinement. You are arguing that it must all or nothing, but that is not the law, nor logical. You can argue for life sentences for all felonies if you like, but that is a different subject.
And I disagree with the law. I dont think you should forfeit your rights if you are deemed fit to re-renter your society. To me, the law goes against cruel and unusual because it creates a second class of citizens based on something you have paid for.
Convicts don't "pay for" anything. They are locked away to protect society and they have rights taken away from them for the same reason. The fact that restrictions on certain rights are given back does not equate to being deemed a trustworthy member of society.
No one deems felons "fit to reenter society" at the end of their sentence. They are simply conditionally released after the mandated incarceration, under conditions that were established the day they were convicted. Again, loss of rights IS a life sentence placed on all felons.
Violent felons get lifetime restrictions on their rights by virtue of their very first conviction. You can argue that isn't fair, but I will argue that it is entirely fair.
There is always due process available for those who seek to regain their rights, and I can easily think of situations when I would be OK with that.
Going back to the notion that convicts pay for their crimes, that is fundamentally flawed. A rapist doesn't get to trade 10 years for a sexual assault, as if it were a market place transaction. A rapist is deemed to be a danger to society AND a second class citizen not worthy of full rights. After a certain amount of time, restrictions on movement are lifted (too soon I think) and the convict is allowed to reenter society as a second-class citizen.
Recidivism for violent crime is quite high (making a case for life sentences); anyone released after such an act continues to be a threat to others and untrustworthy in general. If there is a case to be made otherwise on an individual basis, there is a legal route open to allow it.
I'm 100% OK with that. You of course are free to petition the government for lighter sentences for felons.
So, your solution to the problem is the BATFE and the unConstitutional infringement of my right to keep, bear, purchase, sell, transfer, manufacture, and use arms?
From just a practical standpoint, do you believe that any good whatsoever has been accomplished by gun laws?
There is absolutely nothing unconstitutional about depriving a felon of their liberties. It is done for both punishment and protection. Curious that you are OK with locking someone in a cell (I presume), but not OK with depriving them of other liberties.
I'm A-OK with depriving violent felons of their liberties. It is logical and prudent to do so.
Also curious that you consider the sentencing punishment for felons, after due process, to be a "gun law". I do not. Felons forfeit many of their rights as a citizen when they commit a crime. This is enforced when they are convicted.
The right to be armed is no more or less sacrosanct than the rights of free association (taken away), property rights (limited), and suffrage (also taken away).
The fact that felons have certain rights restricted or taken away makes those rights more, not less meaningful.
Are you going to argue that felons should keep firearm rights while in prison? Why not? Isn't it God given? The loss of those rights are part of their sentencing process. It is illogical to argue that all parts of a felons sentence must have the same term. Lifelong loss of certain liberties along with a term of incarceration is the norm.
Felons have not "paid for" their crimes. They have been locked away. They are not due anything in return. They are not deemed to be trustworthy upon release. They are deemed to not be trustworthy by a court of law for a period extending to their death. What part of this are you having trouble understanding?
If the sentence for a felony includes a lifetime prohibition of keeping and bearing arms, then it is most certainly a "gun law".
What I was referring to, however, is the continuing encroachment on MY right to keep and bear arms in a foolish attempt to keep recidivist criminals from getting guns.
The entire FFL scheme is designed to diminish MY rights with no discernible effect on criminal use of arms.