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 Johnston’s 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 didn’t have occasion to issue any specific holding on that point.
The court also concluded that North Carolina’s 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). (I’m 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 Constitution’s 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 you’re interested in the subject, read the whole thing.
Fine. Then yes, I'm Ok with "gun laws" that prohibit felons from having firearms, "child laws" that prohibit pedophiles from adopting, "traffic laws" that prohibit chronic DUI felons from driving, "voting laws" that prohibit felons from voting, "free speech laws" that prohibit mail fraud, etc., etc., etc. These are slippery slopes I'm willing to stand on.
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.
Exactly how does prohibiting convicted felons from owning or possessing a firearm encroach on YOUR right to keep and bear arms?
Does the requirement to file a deed with the county infringe on your property rights? Does the fact that you have to purchase air time on the radio infringe on your free speech?
I can only assume that you consider the $5 background check to be heinous. I don't. However, I have an FFL, so most of my purchases don't require it, but I still have to pay for that FFL. Again a slippery slope question. I don't find the background check heinous, as currently administered, but I would readily grant that it could become so. That is always the case. Perpetual vigilance is the price of liberty. I'm going to go out on a limb and guess that you are OK with photo ID checks for voting, which also requires a person to put some money down.
An alternative would be to brand or tattoo felons, so that the rest of us don't have to pay and be inconvenienced because of their actions. I'm OK with that too. In fact, I think every rapist should get an R on their forehead, and every murderer an M. Career thieves can get a T.
This is a valid question that I failed to respond to.
I would repeal the federal laws, except for sentencing of felons. Who possesses a firearm is a state issue. I'd allow mail order purchases again, with proof of ID. As I said, I don't think the current background check is heinous, but I can think of better alternatives that affect us less and convicted felons more.
As far as barring felons from possession - yes, I think that is effective. Perfect? No. But very helpful. Can a felon still get a gun? Yes, but they have to put themselves as jeopardy to do so and every moment they are in possession they remain in jeopardy. I'd be happier if these laws carried stiffer penalties and were stringently enforced. A convicted rapist who is pulled over for questioning and is found to have a pistol on his person, should be headed back to prison. Convicted felons are often charged for possession of a firearm, which is not a bad thing.
I completely disagree with you.
Firstly: if the government can revoke the right to keep and bear arms for felony conviction it opens up a *BIG* hole for the _legal_ disarming of the people. Consider that when Obamacare kicks in, in 2014, anyone who fails to have ‘qualifying’ healthcare becomes a felon. Period. Given the difficulty in getting jobs right now (something hat will not soon be gone, IMO) this opens up the possibility that large chunks of the general population will become ‘prohibited persons’.
Secondly: the law which made the felon a ‘prohibited person’ is itself invalid. The Constitution prohibits Ex Post Facto laws, and even with the lax ruling the USSC made in the 1800s (that the prohibition applies only to criminal laws), the modification of the sentence of already sentenced (and especially those who had fully served it) STILL qualifies.
Hey buddy, they can put you in prison for a felony conviction too. In fact, they usually do. Are you terrified that putting rapists and murderers in prison is a dangerous precedent for open concentration and reeducation camps? Would you feel more free if felons were left alone? Man get a grip!
Secondly: the law which made the felon a ‘prohibited person’ is itself invalid. The Constitution prohibits Ex Post Facto laws, and even with the lax ruling the USSC made in the 1800s (that the prohibition applies only to criminal laws), the modification of the sentence of already sentenced (and especially those who had fully served it) STILL qualifies.
I have news for you, when the law says that convicted felons cannot possess firearms for life, and then you are convicted of a felony, that isn't Ex Post Facto under any definition of the term. That was the law, the prescribed punishment, and you were found guilty. De Facto you are receiving the punishment prescribed by law at the time of your conviction.
You are scared to death that a tyrannical government will use a toe in the door to force their way in. I have more news for you. Tyrannical governments don't need such things, they will just make it up and blast the door with dynamite. That is when those weapons must be used, otherwise there is no point in having them.
If you think that giving known rapists and murderers free access to weaponry will protect you, you are nuts. It will infact give a tyrannical government a far better argument (as if they need one) for confiscating firearms. And the bottom line is that if we don't use our firearms when they come to confiscate them, then there isn't any point in having them.
Upon the whole, though there cannot be a case, in which an ex post facto law in criminal matters is requisite, or justifiable (for Providence never can intend to promote the prosperity of any country by bad means) yet, in the present instance the objection does not arise: Because, 1st. if the act of the Legislature of Connecticut was a judicial act, it is not within the words of the Constitution; and 2nd. even if it was a legislative act, it is not within the meaning of the prohibition.
So, there you have the Supreme Court saying that it is never justified for the "bad means" of Ex Post Facto law.
Previously in Calder v. Bull:
The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty; and therefore they may be classed together.
There we see that the creation of a crime, and the enhancement of its penalty (the sentence) are classed together.
And from there we can see that a law which condemns felons, who have already a) served their sentence, or b) been sentenced and *ARE* currently serving their sentence to the additional lifetime-prohibition of guns MUST, in the eyes of this USSC decision, be an Ex Post Facto law.
As the law which we are talking about, the GCA of 1968, contains no exception for the persons in classes of (a) and (b) above then that law *MUST* be Ex Post Facto, and therefore illegitimate as contrary to the Constitution.
Thus it has been shown.
You rob a bank. The moment you are convicted of the felony, you are sentenced to life without possession of firearms. You are also sentenced to a term of incarceration. Being penned up for a finite amount of time does not wave the rest of the sentence. As I said, concurrent sentencing.
For Ex Post Facto to occur, the felony restriction law on firearms would have to come into effect after the crime, but that is not the case currently. Everyone arguing for felon rights here seems to think that the felon has paid some debt by being locked up. They have done nothing of the kind.
Drunk drivers can be permanently banned from driving a motor vehicle, and felons are permanently banned from possessing firearms, based on laws in existence before they committed the felonies.
So how is it that if incarceration is added to that sentence it suddenly becomes Ex Post Facto?
What has you confused is the notion that the only punishment possible in sentencing is incarceration. In that you are wrong.
Yes, I do.
And here in Kalifornia, the cost is more like $50 per firearm, not counting the additional costs of having to visit the FFL twice to take possession of the firearm.
All of this nonsense was enabled by the federal FFL system. I shouldn't have to answer to you, the government, or anybody else to keep, bear, sell, buy, or manufacture a firearm.
Suppose the government decides that felons should not be able to read books about successful criminals. Does that mean you would support a system which requires me to suffer a background check to purchase a book?
Yes. But such a thing would have no value whatever if the government could be constrained within its Constitutional limits. Without the trillions of dollars being spent on socialism and other progressive nonsense, there would be no motivation whatever to commit voter fraud.
The problem today is that so much is at stake with every election. There should be practically nothing at stake.
The BATFE and the NICS would be among the first to go if the cost-cutting were left to me. The monopoly that you exercise as an FFL would disappear.
I never said that; nor do I know how you could think I implied it.
Let me put this to you another way. What if the ONLY punishment for a crime was a lifetime prohibition on the possession of firearms, would that be Ex Post Facto? Of course not. That is THE sentence.
But that is not what happened; when GCA68 was passed it created the prohibition for felons, even those who had served, or were serving their sentence. Let me put it to you another way. Let's say that you get pulled over for speeding and, after taking a jury-trial, are found guilty... so you pay your fines and then -- all of a sudden -- your state Legislature passes a law that not only penalizes speeders, but those who have EVER been convicted of speeding; why should you, having already [literally] paid your debt to society be burdened by this?
So how is it that if incarceration is added to that sentence it suddenly becomes Ex Post Facto?
As per Calder v. Bull -- "[...] ex post facto laws have an appropriate signification; they extend to penal statutes, and no further; they are restricted in legal estimation to the creation, and, perhaps, enhancement of crimes, pains and penalties. The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty; and therefore they may be classed together."
AND, even more specifically:
"for, the true construction of the prohibition extends to criminal, not to civil, cases. It is only in criminal cases, indeed, in which the danger to be guarded against, is greatly to be apprehended. The history of every country in Europe will furnish flagrant instances of tyranny exercised under the pretext of penal dispensations. Rival factions, in their efforts to crush each other, have superseded all the forms, and suppressed all the sentiments, of justice; while attainders, on the principle of retaliation and proscription, have marked all the [3 U.S. 386, 400] vicissitudes of party triumph. The temptation to such abuses of power is unfortunately too alluring for human virtue; and, therefore, the framers of the American Constitutions have wisely denied to the respective Legislatures, Federal as well as State, the possession of the power itself: They shall not pass any ex post facto law; or, in other words, they shall not inflict a punishment for any act, which was innocent at the time it was committed; nor increase the degree of punishment previously denounced for any specific offence."
So, in summation; your problem is not with me; but with the Supreme Court of 1798.
Please illustrate where there reasoning is either a) wrong, or b) invalid.
So you are stating that a historical case of Ex Post Facto occured 43 year ago. Perhaps, but only if not already covered by state laws.
The young felons, so affect would be what, 63 years old? For felonies occuring since, it is clearly not Ex Post Facto.
I share your ideals, but have long since realized that people are far too flawed to be constrained by paper laws. Liberty must be hard one by every single generation and the wishful thinking that you can prevent encroachment with absolutes, such "not even felons will lose liberties", doesn't change that at all. If you were somehow able to get your way on this, that benchmark would be no more secure than mine. And I believe mine is far more logical and just.
The BATFE and the NICS would be among the first to go if the cost-cutting were left to me.
I'm good with that. The local police are the ones who should enforcing laws concerning felons.
The monopoly that you exercise as an FFL would disappear.
In fact, its not a monopoly, but I take your point, and agree with the underlying tenant. An FFL is one of the many things that I don't think we need in a free society.
When speaking of Kalifornia I must limit my words. You sir live in a tyrannical state. I do consider $50 unreasonable and heinous and no, I don't consider $5 unreasonable. Nor do I think that the $5 check was in any way required for your tyrannical state to end up where it is act. See my previous comments c. benchmarks.
All of this nonsense was enabled by the federal FFL system. I shouldn't have to answer to you, the government, or anybody else to keep, bear, sell, buy, or manufacture a firearm.
I pay $5 and you pay $50. I would say that 90% of the nonsense is Kalifornia.
Suppose the government decides that felons should not be able to read books about successful criminals. Does that mean you would support a system which requires me to suffer a background check to purchase a book?
Fair question. The answer, as I said before, is that I think felons should bear the burden via tattoos or brands.
Per your specific example, I believe in a reasonable hassle approach, and your example would be an issue with me. But let's walk on down that path. Let's say that there is a text book on child development that has 4000 photos of naked children. The government deems that they want to restrict this book to anthropological studies and that a certification letter is necessary to purchase it, lest it be considered child pornography. I'm OK with that. I think such a thing are possible without it leading to the closing of newspapers. But we should limit such things to as little and infrequent as possible and constantly guard against encroachment.
In short, my point is that whether you start on the 10 or the 20 yd line, you have to play football all the time.
Is there any human activity to which you would be unwilling to apply prior restraint?
Most, but producing, buying, and selling pictures of naked children isn't one of them.
Protecting criminals ultimately makes us less secure, not more, in our rights.
Why? Because tyrants will capitalize on the very rational reaction people will have to what they believe is illogical and misapplied leniancy. They will readily accept extreme measures in return.
If you want a more libertine society, you have to change minds, not pick irrational instances of absolutism.
In short, you are picking bad ground and a horrible hill to fight on. Worse, when your position collapses, it puts the entire issue at risk. You live in a socialist state that has made firearm possession unreasonably difficult, but instead of making that argument, you state that no harm can come of giving convicted violent felons legal access to deadly weapons. Sorry friend, but you just lost 98% of the room and alienated 60% of it to the notion that the current application laws are heinous.
Not quite; that the law is at all Ex Psot Facto de-legitimizes the whole law... to say otherwise is to allow such laws to stand "if you can get away with it" for so long. But, EVEN IF you are correct, the GCA is STILL illegitimate because it also adds those under indictment* to the list of prohibited people: (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person --
Where the Constitution prohibits such via the 5th Amendment: "No person shall [...] be deprived of life, liberty, or property, without due process of law [...]"
Because if the mere accusation, which is what the indictment is, can be held to restrict the liberty to use/purchase firearms then a person who is innocent in the eyes of Classic American jurisprudence (remember the maxim "innocent until proven guilty") then it cannot be said that the guilt of the crime is the operative factor (and therefore any part of the sentencing thereof) but the accusation of the crime is the operative factor.
* GCA: "(14) The term "indictment" includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted."
I take your point, but it is functionally impossible to treat people as innocent until proven guilty, as you could never make an arrest or put anyone in jail awaiting trial, if we truly presumed innocence until proven guilty. Why would we arrest and jail innocent people?
There is a presumption of innocence during the trial and a guarantee of a speedy trial. The guarantee of a speedy trial is precisely because of the restrictions placed on a person while the are simply charged with a crime.
The indictment process is clearly covered by due process, but this phase is Constitutionally held to a minimum time period.
Indicted people have their freedom greatly curtailed (travel for instance). This is a part of the due process system. So are travel restrictions on indicted people also un-Constitutional in your eyes?
Again, I take your point on tacking extra restrictions onto existing felons in 1968, and frankly, I'd be thrilled to throw out the entire 1968 law. That said, I really can't see your point on it being un-Constitutional to restrict the 2A rights of indicted (temporary status) and convicted felons (permanent status), as we restrict every other freedom they have.
>Indictment is due process. Is it not?
Not according to the GCA; as that law uses the following as the definition of ‘indictment’:
GCA: “(14) The term “indictment” includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted.”
Paying special attention to the OR INFORMATION IN ANY COURT means that the government may sidestep all actual process [the indictment] and instead use its ‘information.’
>I take your point, but it is functionally impossible to treat people as innocent until proven guilty, as you could never make an arrest or
Honestly, that’s what the warrants are for... and that’s why warrants are supposed to be for a particular person/item (rather than the blanket-type that we sometimes see).
>put anyone in jail awaiting trial,
Why do you think the 6th Amendment guarantees a ‘speedy trial’? A week wouldn’t be unreasonable; but the multiple-month to-trial that we currently have is rather ridiculous.
>if we truly presumed innocence until proven guilty. Why would we arrest and jail innocent people?
Fair point; but things like the GCA aren’t just; they aren’t even about protecting the people [that is, you can’t even say the motive is good]... they are just BAD law.
>So are travel restrictions on indicted people also un-Constitutional in your eyes?
Given the amount of time that it takes to get to trial; yes. If it were a day or two, that’s reasonable.
>Again, I take your point on tacking extra restrictions onto existing felons in 1968, and frankly, I’d be thrilled to throw out the entire 1968 law. That said, I really can’t see your point on it being un-Constitutional to restrict the 2A rights of indicted (temporary status) and convicted felons (permanent status), as we restrict every other freedom they have.
The problem with the felon-status is, as I have explained before, that the law was enacted in an ex post facto manner. Restricting that, and every other freedom, of someone who has served their sentence is deplorable.
And before you say that it is part of the sentence, let me illustrate the difference between the GCA and the US Code on their wording regarding punishments.
Example from the US Code:
“[...] They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
Example from the GCA:
“No person may ship or transport any firearm or ammunition in interstate or foreign commerce, or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce, who:
Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year,”
Curiously I'm in full agreement about GCA being unconstitutional, but for a different reason. My tripwire is the abuse of the commerce clause, which covers about 60% of the current federal government.
I've read through your last point comparing the GCA and US Code several times, and I must admit that I don't understand your point. I don't mean that as a dig, your arguments have been very straightforward and clear.
As we are both in agreement that the GCA is bad law and unconstitutional (albeit for different reasons). How do you feel about the underlying question that started this discussion, i.e. including a lifetime prohibition (state law with state to state reciprocity as they wish) on the possession of weapons for those convicted of violent crimes (going forward - no Ex Post Facto), inclusive of due process allowance for petitioning for the return of rights?
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