The Second Amendment and Non-Violent Felons

[TPaine7]

The Second Amendment and Non-Violent Felons

Eugene Volokh • August 6, 2010 10:59 am

United States v. Williams (7th Cir., decided yesterday) (Judge Michael Kanne, joined by Judge Ilana Rovner and retired Justice Sandra Day O’Connor, sitting by designation) upholds — as usual — a conviction for being a felon in possession of a gun, but has this to add:

the government does not get a free pass simply because Congress has established a “categorical ban”; it still must prove that the ban is constitutional, a mandate that flows from Heller itself. Heller referred to felon disarmament bans only as “presumptively lawful,” which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge....

lthough we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“ person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

Source: http://volokh.com/2010/08/06/35138/
Case: http://www.ca7.uscourts.gov/tmp/000TZQCY.pdf

I've debated several times here about felons' rights to keep and bear arms. While I do believe, for instance, that Charles Manson should never have his right to keep and bear arms (RKBA) restored--parole or no parole--I think that the courts are starting to trend in the right direction. At least some non-violent felons shouldn't lose their RKBA after incarceration.

Off the top of my head, the only non-violent felonies I would deny the RKBA for would be treason and statutory rape. Others (or even I after further reflection) may differ on the list, but I think the important principle is that government cannot label an arbitrary non-violent offense a felony and thereby strip people guilty of that non-violent offense of a fundamental right for life. There must be a rational relationship between the person being armed and public safety--the person must have demonstrated that they are, or are prone to be, a PHYSICAL risk.

The same principle that applies to the First Amendment should apply to the Second. The government cannot strip all felons of the right to use computers, but it can strip the computer rights of a felon who hacks into the Pentagon and steals and sells national security data.

[X_Digger]

1. Agreed, it should be proportional. n/t

[jdlh8894]

2. But Manson could still purchase a knife?

[TPaine7]

4. I have no problem with a judge forbidding Manson the use of knives

at least outside his home. Ditto for sharp sticks.

Of course I also think he should be locked up for life.

[damntexdem]

7. I would say both inside and outside of his cell.

And that he should never be released.

[SteveM]

6. Oh, is the poor sick puppy out of jail, now? Don't think so. nt

[CreekDog]

19. so because if he were out he could purchase a knife, we shouldn't prohibit him from purchasing a gun

if your purpose is to convince people, how is that done without credibility?

[mvccd1000]

3. Many states already have provisions for restoring these rights

IIRC, though, the feds have refused for years to fund the means to do the same thing.

To paint with a very broad brush, I think that someone who is "safe" enough to be out of prison walking the streets is safe enough to exercise his civil rights.

[TPaine7]

5. Do you believe that all released hackers should be allowed the use of computers?

Or that a 90 year old repeat child molester should be allowed unescorted access to his great-grand children simply because he was released?

Or do you rather believe that both of these people, who are relatively harmless if denied unfettered access to computers or children, should be incarcerated for life at taxpayer expense?

[LAGC]

9. It depends if they are still on parole or not.

Obviously, if they are still on parole, restrictions can and do apply. But once they've topped out their sentence, no further restrictions should remain, IMHO.

In the examples you listed, computer hacking is often times just a youthful indiscretion, nothing more. People grow out of it.

As for the child molester, if he's deemed to be at risk of re-offense, a longer sentence can be applied by the courts. In some cases, life-time supervision is warranted, in which case they are never off of parole.

But once the court's jurisdiction ends, once parole is terminated, so should restrictions on people's freedoms. All civil rights should be restored.

[PavePusher]

10. I agree.

I also think this would lead, eventually, to more appropriate sentencing, more thoughtfull parole boards (especially if they were held accountable for the actions of the people they release), and more development of true rehabilitation efforts.

All to the good.

[lepus]

12. if they are considered to still be a danger,

then what the hell are they doing loose.

Ah, I remember, making space for a substance abuse arrest.

Simple answer folks. Do not let people that are still dangerous out of jail.

[Recursion]

18. Barring hackers from using computers has an unfortunate case history

The famous example was Kevin Mitnick; in that case the prosecution simply pulled out of their ass a list of all the dangerous things he could do if he was around a computer (including laughable physically impossible things), the judge believed them, and he was barred from using a computer once he was released.

If I had more confidence in prosecutors and judges, maybe.

[Euromutt]

13. I'm not sure I entirely agree with your last point there

The purpose of custodial sentences is, after all, mostly punitive, and in my opinion (and I acknowledge that I too am painting with a very broad brush), society only has the right to punish someone for an offense of which he has been convicted, not for offenses he might additionally commit in future. So I think there are quite a few situations in which society might tell an offender, "we have punished you for your past offense, but while we do not have sufficient grounds to continue to deprive you of your freedom to the extent of keeping you incarcerated, given your past behavior, we don't trust you enough (at least, not yet) to allow you to possess a weapon (or lockpicking tools, or a computer equipped with a modem etc. as appropriate)."

[spin]

8. In my opinion, non violent felons should have their gun rights restored ...

However anyone convicted of a violent crime or caught carrying illegally should lose their rights.

Note that I don't feel this should apply (in all cases) to a person caught illegally carrying a firearm. For example, a woman who has filed a restraining order against a stalker or a potentially dangerous significant other might feel a real need to carry a weapon for self protection, but not have the time to go through the legal process to get a concealed carry license.

Of course, in such cases, a judge should be able to issue an order that allows the woman to carry concealed while she is awaiting her license.

My daughter had a personal experience with a stalker who merely viewed her restraining order as a chance to show that he could disobey it. Despite frequent calls to report violations to the police, he persisted. Fortunately, my daughter already had a concealed weapons permit and carries.

The stalker was aware of the fact and petitioned the judge to revoke her permit. A mix up occurred at the courthouse and my daughter received a certified letter to turn over her permit. She immediately contacted the judge who rectified the situation.

Eventually the stalker overstepped his bounds and was arrested. He spent several weekends in jail and the judge told him the next time he violated the restraining order, he was looking at a year in prison. He appears to have learned his lesson.

[Recursion]

17. Weapons trafficking is a non-violent felony, I think?

IMO that one certainly warrants curtailing their gun rights.

[Euromutt]

11. I think burglary is classed as a non-violent offense

I'd still want a burglar stripped of his RKBA. Besides, residential burglars are IMNSHO scum, and worse, they have one of the highest recidivism rates of any class of criminal.

That having been said, the United States could also stand to reduce the number of offenses that are classed as felonies. From The Economist's lewader of two weeks ago (http://www.economist.com/node/16640389?story_id=16640389):

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

The accompanying article (http://www.economist.com/node/16636027?story_id=16636027) relates the story of George Norris of Spring, TX who collected orchids. He imported a small number of orchids from various Latin American countries, and sometimes sold them on to other collectors. Because his suppliers were on occasion sloppy with their paperwork, he was arrested by the FBI on suspicion of smuggling in contravention of the Convention on International Trade in Endangered Species. Moreover, one of the people he'd resold some orchid to turned out to be an undercover FBI agent, and because several of the orchids were missing their paperwork, he was also charged with making a false statement to a government official (which is ludicrous when the government official in question is deliberately obscuring the fact that he is a government official), punishable by up to five years imprisonment, and because he communicated with his suppliers, he was also charged with conspiracy. Faced with mounting legal bills and up to well over a decade of prison time, Mr. Norris copped a plea and ended up doing 17 months.

Fewer than half of American cancer patients receive adequate treatment for pain, because many doctors are scared to prescribe the amounts required. In 2004, Dr. William Hurwitz was sentenced to 25 years in prison because a couple of people for whom he'd prescribed painkillers had resold them on the black market, even though a Virginia medical board ruled he'd acted in good faith and been unaware of his patients' activities. Hurwitz ended up serving four years.

These are people who arguably should never have received prison sentences at all, and certainly, stripping them of constitutional rights indefinitely for their transgressions is just way out of line.

[-..__...]

14. The 1968 GCA allows certain non-violent felons to posses firearms...

20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or...

http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00000921----000-.html

While I agree that certain non-violent felonies should not result in the loss of ones 2nd amendment rights, the blatant elitism of the above provision pisses me off.

[LAGC]

15. Some states automatically restore RKBA upon completion of felony sentence.

Take Idaho for example, State Code 18-310 specifies:

18-310.Imprisonment -- Effect on civil rights and offices. (1) A sentence of custody to the Idaho state board of correction suspends all the civil rights of the person so sentenced including the right to refuse treatment authorized by the sentencing court, and forfeits all public offices and all private trusts, authority or power during such imprisonment: provided that any such person may bring an action for damages or other relief in the courts of this state or have an action brought against such person; and provided further that any such person may lawfully exercise all civil rights that are not political during any period of parole or probation, except the right to ship, transport, possess or receive a firearm, and the right to refuse treatment authorized by the sentencing court.
(2) Upon final discharge, a person convicted of any Idaho felony shall be restored the full rights of citizenship, except that for persons convicted of treason or those offenses enumerated in paragraphs (a) through (jj) of this subsection the right to ship, transport, possess or receive a firearm shall not be restored. As used in this subsection, "final discharge" means satisfactory completion of imprisonment, probation and parole as the case may be.
(a) aggravated assault (18-905, 18-915, Idaho Code);
(b) aggravated battery (18-907, 18-915, Idaho Code);
(c) assault with intent to commit a serious felony (18-909, 18-915, Idaho Code);
(d) battery with intent to commit a serious felony (18-911, 18-915, Idaho Code);
(e) burglary (18-1401, Idaho Code);
(f) crime against nature (18-6605, Idaho Code);
(g) domestic battery, felony (18-918, Idaho Code);
(h) enticing of children, felony (18-1509, Idaho Code);
(i) forcible sexual penetration by use of a foreign object (18-6608, Idaho Code);
(j) indecent exposure, felony (18-4116, Idaho Code);
(k) injury to child, felony (18-1501, Idaho Code);
(l) intimidating a witness, felony (18-2604, Idaho Code);
(m) lewd conduct with a minor or child under sixteen (18-1508, Idaho Code);
(n) sexual abuse of a child under sixteen (18-1506, Idaho Code);
(o) sexual exploitation of a child (18-1507, Idaho Code);
(p) felonious rescuing prisoners (18-2501, Idaho Code);
(q) escape by one charged with, convicted of or on probation for a felony (18-2505, Idaho Code);
(r) unlawful possession of a firearm (18-3316, Idaho Code);
(s) degrees of murder (18-4003, Idaho Code);
(t) voluntary manslaughter (18-4006(1), Idaho Code);
(u) assault with intent to murder (18-4015, Idaho Code);
(v) administering poison with intent to kill (18-4014, Idaho Code);
(w) kidnapping (18-4501, Idaho Code);
(x) mayhem (18-5001, Idaho Code);
(y) rape (18-6101, Idaho Code);
(z) male rape (18-6108, Idaho Code);
(aa) robbery (18-6501, Idaho Code);
(bb) ritualized abuse of a child (18-1506A, Idaho Code);
(cc) cannibalism (18-5003, Idaho Code);
(dd) felonious manufacture, delivery or possession with the intent to manufacture or deliver, or possession of a controlled or counterfeit substance (37-2732, Idaho Code);
(ee) trafficking (37-2732B, Idaho Code);
(ff) threats against state officials of the executive, legislative or judicial branch, felony (18-1353A, Idaho Code);
(gg) unlawful discharge of a firearm at a dwelling house, occupied building, vehicle or mobile home (18-3317, Idaho Code);
(hh) unlawful possession of destructive devices (18-3319, Idaho Code);
(ii) unlawful use of destructive device or bomb (18-3320, Idaho Code);
(jj) attempt (18-306, Idaho Code), conspiracy (18-1701, Idaho Code), or solicitation (18-2001, Idaho Code), to commit any of the crimes described in paragraphs (a) through (ii) of this subsection.
(kk) The provisions of this subsection shall apply only to those persons convicted of the enumerated felonies in paragraphs (a) through (jj) of this subsection on or after July 1, 1991, except that persons convicted of the felonies enumerated in paragraphs (s) and (t) of this subsection, for any degree of murder or voluntary manslaughter, shall not be restored the right to ship, transport, possess or receive a firearm regardless of the date of their conviction if the conviction was the result of an offense committed by use of a firearm.

So unless your felony is on that list, once the sentence (including probation and parole) is expired, the felon is restored all rights of citizenship, including RKBA. Whether the Feds honor it (in regards to passing NICS checks and the like) is another matter.

[Recursion]

16. I'd add weapons trafficking and RICO

Neither of those are violent, but I think there's a good argument for severely limiting those felons' RKBA.