[Drizzt]

Chicago Daily Law Bulletin

May 19, 2003, Monday

SECTION: Pg. 1

LENGTH: 678 words

HEADLINE: Convicted felons have no gun rights: U.S. appeals court

BYLINE: PATRICIA MANSON; Law Bulletin staff writer

BODY:
Even U.S. Attorney General John Ashcroft concedes there are limits to a private individual's right to keep and bear arms, an appeals court has noted in upholding the constitutionality of a federal gun law.

The 7th U.S. Circuit Court of Appeals rejected arguments Friday that Congress overstepped its bounds when it outlawed the possession of firearms by convicted felons.

Citing cases that included U.S. v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974), and U.S. v. Hemmings, 285 F.3d 587 (7th Cir. 2001), the court noted that it previously has found the felon-in-possession statute or a predecessor statute to be constitutional.

And quoting Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), the court said it has held that rights under the Second Amendment belong "not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia."

The 7th Circuit acknowledged that the New Orleans-based 5th U.S. Circuit Court of Appeals as well as Ashcroft subscribe to "an individual rights interpretation of the Second Amendment."

This interpretation holds that the amendment protects the right of "individuals, including those not then actually a member of a militia or engaged in active military service or training, to privately possess and bear their own firearms," the 7th Circuit said, quoting the 5th Circuit's opinion in U.S. v. Emerson, 270 F.3d 203 (2001).

Likewise, the 7th Circuit said, Ashcroft in a recent letter to the executive director of the National Rifle Association said "the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."

But it didn't seem that clear to the 7th Circuit.

"He says 'clearly,' though his view, as the need for such a lengthy discussion in Emerson reveals, is also pretty clearly not self-evident," Judge Terence T. Evans wrote for a three-member panel of the 7th Circuit.

The panel declined to get bogged down in a discussion of the comparative virtues of the "individual rights" and "collective rights" models of the Second Amendment.

"But even were we inclined to, there is no need for us to wade into that Second Amendment quagmire because, although it espouses an individual rights approach to the Second Amendment, the Emerson court agrees with our conclusion that rights under the amendment can be restricted," the panel said.

The panel noted that the 5th Circuit in that case specifically upheld the constitutionality of a prohibition on convicted felons -- as well as minors and people of unsound mind -- possessing firearms.

And Ashcroft acknowledged that the Second Amendment does not prevent Congress "from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons," the panel said, quoting a footnote from the attorney general's letter.

Such a prohibition is contained in 18 U.S.C. sec922(g), according to the panel.

"At least for the moment, section 922(g) is safe with us and, in fact, is safe with the attorney general and the Court of Appeals for the Fifth Circuit," the panel said.

The panel affirmed the conviction of Kenneth James Price, who was found guilty of offenses that included armed robbery and being a felon in possession of a firearm.

Price had put a ski mask over his face before entering a bank in Elgin on a summer day in 2001 and taking $ 8,300 from a teller at gunpoint.

Price was apprehended within 1,000 feet of the bank carrying a ski mask stuffed with the exact amount of cash taken in the robbery. He had a gun tucked in the waistband of his jeans.

Joining the opinion were Judges William J. Bauer and Daniel A. Manion. U.S. v. Kenneth James Price, No. 02-2569.

[Marko Kloos]

Baloney. The judges are basically concurring that the Second Amendment is "more evil" than the others.

This is dangerous precedent. If one article of the Bill of Rights can be invalidated for convicted felons, why not all the others? There's absolutely no legal or philosophical difference. Anybody who agrees with this is willingly handing the politicos the tools to the dismatling of the Bill of Rights.

Bayonet lug on your rifle in California? No Second Amendment rights for you, for the rest of your life. We'll add other rights to the "excludes felons" list as we please.

What part if "inalienable" is so damn hard to comprehend?

[Standing Wolf]

...there is no need for us to wade into that Second Amendment quagmire...

"Quagmire," eh? Appointed to the bench by a representative of the Democratic (sic) party, no doubt?

[Wildalaska]

An appropriate ruling, pass on the dicta

WildrightagainAlaska

[atek3]

I believe a total ban on all firearms except scopeless, single shot, bolt action, 22 caliber rifles would be legal under emerson. its worse than "collective rights" because at least non-fools know collective rights is bunkem.

atek3

[Art Eatman]

Explanatory writings of the 1790s (The "Anti-Federalist Papers" among them) stated that possession of firearms should be denied to "persons of ill repute or unsound mind". It has long been the case in pretty much all civilizations of history that misbehavior costs one the exercise of previously-held rights.

State law in Texas was a bit more generous: Before the federal pre-emption, a felon could have a firearm in his home for self-defense, although he could not carry outside the home nor take it hunting.

The question so many of these federal judges avoid considering: The entire Bill of Rights is a restriction against abuse of power by the central government. How, then, can any of the first ten amendments be other than individual rights? How can these amendments go against the original intent of the writers, and restrict individual people?

Art

[Leatherneck]

And quoting Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), the court said it has held that rights under the Second Amendment belong "not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia."
I haven't heard of Gillespie v. Indianapolis before. Did the Fifth previously rule against individual rights?

TC
TFL Survivor

[tyme]

(Art Eatman) Explanatory writings of the 1790s (The "Anti-Federalist Papers" among them) stated that possession of firearms should be denied to "persons of ill repute or unsound mind". It has long been the case in pretty much all civilizations of history that misbehavior costs one the exercise of previously-held rights.
So everything people thought to be reasonable in 1800 should be implemented in law? I haven't been persuaded by any policy arguments suggesting that felon-in-possession should be a crime. Those laws are unenforceable, and there was no blood running in the streets before 1968. The GCA felon-in-possession law was just the beginning of the slippery slope that led to the current legal situation, where a spousal complaint can get your rights pulled as can a conviction for possession of 1oz of leaves or a bayonet mount for the wrong rifle.

[RON in PA]

It seems to me that convicted felons lose more than their 2nd Amendment rights. The right to vote for example.

[Marko Kloos]

It seems to me that convicted felons lose more than their 2nd Amendment rights.

Are the rights recognized in the Bill of Rights "inalienable", or are they not?

If they are inalienable, how can we deny them to felons once they're out of jail?

If they're not inalienable, what's all this "RKBA" talk, and why do we argue with the antis that we have a "right" to keep and bear arms? Where's the footnote in the BoR that exempts felons?

Furtnermore, if a felon can lose his right to gun ownership, what's to keep us from denying his right to free speech or due process? You've already set precedent, why single out one BoR amendment?

Can you even single out one amendment without rendering the whole parchment pointless?

[Art Eatman]

tyme, I was merely pointing out an instance of historical perspective, insofar as what the writers thought. The same people who wrote the Constitution and the Bill of Rights had no qualms whatsoever about denying those same rights to certain residents or groups of residents. "The people" apparently did not include each and every homo sap who was upright and breathing. Aside from slaves and women, this apparently included the violent and the insane.

I'm old, but I wasn't around in 1792. I may well have read more than the average fella of the thoughts of that time, but I don't claim expertise. All I can do is try to understand the word usage of the era, and keep that in mind as I read today's different usage of the same words. ("Regulate" instantly comes to mind as an example.)

Recall that before 1934, gun laws were strictly a state matter. Note my example of Texas law about felons and firearms. I'll bet the legislators who wrote that law saw it as fair to both the felon and the community. When the ideal rubs up agains the practical, the practical usually wins, whether I like it or not.

Art

[FPrice]

"Can you even single out one amendment without rendering the whole parchment pointless?"

Well, lets take a look at a couple of examples.

Do you favor letting violent felons who are in jail have free access to firearms?

How about those who are mentally retarded and cannot grasp the concept of firearms safety?

What about these two categories of people, do they have an inalienable right?

[Marko Kloos]

Do you favor letting violent felons who are in jail have free access to firearms?

Incarceration is a special condition, in which people are temporarily barred from exercising their rights. If they're dangerous, lock them up or kill them. If they're safe to walk the streets, they ought to have the right to self-defense.

How about those who are mentally retarded and cannot grasp the concept of firearms safety?

Yes. You cannot make exceptions for people you deem mentally unfit, because then you leave a Constitutional right at the mercy of someone's definition of "unfit". If they do harm or evil, lock them up or kill them. If they're safe to walk the streets, they ought to have the right to self-defense.

[Art Eatman]

Well, lendringser, to be a bit picky and stretch points and all that: Is not drunkeness commonly a short-term form of mental impairment? Is it not true that some mentally ill can enter phases wherein they--with little or no warning--become irrational and sometimes violent? And from an Old Fart's standpoint, it ain't a lot of fun dealing with a juvie's mouth, much less a juvie with a gun. So how long is the term of lockup? "Kill a kid and find peace and quiet?"

As near as I can tell, it was intended that the Bill of Rights enumerate the rights accruing to responsible adults, and I believe that it was an assumption of that era that this idea was one of those in the category, "It goes without saying..." Obviously, they didn't say, and I'm just guessing. However, those Founders were a rather pragmatic bunch, all in all. The focus was against an abusive central government, not against the era's mini-groups' (towns, cities and states) use of laws as self-defense.

Lemme know when you find that perfect place. :D

Art

[jimpeel]

It seems to me that convicted felons lose more than their 2nd Amendment rights. The right to vote for example.There is a vast difference between the right to bear arms and the "right" to vote.

The right to bear arms is a natural right.

The "right" to vote is a conferred right.

Here's the difference:

The Second Amendment states:A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Fifteenth Amendment, however, states:
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.

Note that "Section 2". It essentially states "We can giveth, and we can taketh away."

People who the Congress doesn't like can be denied the right to vote and others can be added at their whim. They confer upon those they like the "right" to vote and they do not confer same upon those they do not like. Just like they conferred upon themselves "... the power to enforce this article by appropriate legislation."


That's the difference.

[FPrice]

"Incarceration is a special condition, in which people are temporarily barred from exercising their rights."

So you do believe in some form of restriction of inalienable rights. And I guess that you believe that when a felon is through with their jail term that they automatically are now an upstanding citizen capable of exercising responsibility in all that they do?

One of the problems with this exercise of discussing ex-felons' rights is that we tend to assume that the term "felons" describes a class of people with uniform characteristics and qualities. In truth felons comprise a wide variety of people with violent and non-violent tendencies. Satisfactory completion of a prison term may NOT also signify that a person is ready to resume the exercise of this constitional right.

Since we seem to have agreement that a felon loses their right while incarcerated, at what point should this right be re-instated? My personal opinion is that the now ex-felon should demonstrate the ability to act responsibly for a period of time after release and then be evaluated for reinstatement. After all, they lost the right for their actions and behavior, does mere completion of a term of time in controlled conditions signify that these are ready to change?

Of course, this course of action depends upon people and a society that is willing to make an honest appraisal and a decision, not a blind adherance to one extreme view or the other.

"You cannot make exceptions for people you deem mentally unfit, because then you leave a Constitutional right at the mercy of someone's definition of "unfit"."

I disagree. Being afraid to make a responsible decision concerning the ability of a person of dimished capacity to responsibly exercise a freedom of this magnitude is really the intellectual twin of the anti-gun view that no one is capable of safely owning a firearm. I have known more than a few mentally retarded individuals and while I may like them I recognize that at least some of them really do not have the capacity to responsibly own a firearm. A person who must live in a group home with constant supervision rather than on their own probably falls under this line.

I am really wondering about the dichotomy within your last message however. In discussing the issue of felons you state, "If they're dangerous, lock them up or kill them." So you are willing to make a decision in this regard. Yet when talking about people who may not have the mental capacity for firearms ownership, you say, " You cannot make exceptions for people you deem mentally unfit, because then you leave a Constitutional right at the mercy of someone's definition of "unfit"." So it appears that you would be willing to make a decision in one case, but not make a decision in the other.

An unwillingness to restrict a right for demonstrated behaviors is just as bad as the unwillingness to allow anyone to exercise that right. Both are extreme views which deny the requirement to exercise responsibility in the exercise of freedom.

[TheeBadOne]

If you can't do the time don't do the crime

[Ian]

Some people see "felony" and think "rape," "murder," or "robbery." Others see "felony" and think "possession of an assault weapon," "possession of a bald eagle feather," or "failure to pay an excise tax."

When you deny a right to an entire class of people, and leave the definition of that class up to the government, it's a sure bet that more and more people will be denied more and more rights for less and less of a legitimate reason.

[Tamara]

If they can't be trusted with guns, why do we allow them access to far more dangerous items like baseball bats, kitchen knives, and automobiles?

It's a simple rule of thumb:

In the klink: no guns.
Out of the klink: guns.

If they can't be trusted with guns, don't let them out of the pokey. To think otherwise is to have your logic stuck in reverse gear.

[Mr. James]

Aye, Ian, there's the rub.

Tamara has it right, in my most humble opinion.

Mr. Eatman says,

When the ideal rubs up agains the practical, the practical usually wins, whether I like it or not.

Darn it, isn't that the doo-doo burger? :)

[TheeBadOne]

There is a major flaw in the logic of those who say that a felon shouldn't be released from lock up if he can't be trusted with a gun.

1) The guilty party is sentenced to "X" amount of time. He is released at the end of his sentence, period. It has nothing to do with whether or not he will be responsible. Studies have shown that prison return rates run around 90% (recidivism). How's that for optimism about how 'responsible' he'll be when he gets out?

2) A felony conviction will not bar you from firearm ownership for life. There is a time period that expires if you keep your nose clean (recidivism rate here, again, folk).
a) If the "criminal behavior" is a true aberration, apply to have your record expunged.
This does require that the person become a good productive citizen again, so some may not want to go this route.

[Tamara]

Then fix the penal system.


To make a blanket statement about felons and recidivism is to miss the fact that there are felons in this country who are guilty of nothing more violent than owning a joint, hiring a bad accountant, kicking their dog, or putting the wrong upper on their postban lower. To try to make them all sound like Jack the Ripper is to play into the prior restraint hands of the antis.

Repeat:
If they can't be trusted in society, they have no place in it. If they can be trusted in society, they shouldn't be in prison.

[TheeBadOne]

To make a blanket statement about felons and recidivism is to miss the fact that there are felons in this country who are guilty of nothing more violent than owning a joint, hiring a bad accountant, kicking their dog, or putting the wrong upper on their postban lower. To try to make them all sound like Jack the Ripper is to play into the prior restraint hands of the antis.
This is minimizing and not accurate.

1)There is no place in the US that possesion of a joint will get you a felony charge. In most places it's not even a crime, but a petty misd which is a status offense. It may reach simple misd in some places, but I doubt many if any.

2) Hiring a accountant and supporting his efforts to circumvent the IRS is not only not wise, it's criminal. For what it's worth, I do think some get into troulbe without realizing what they're in for.

3) Kicking your dog may raise the ire of some people (me included if it's for no reason), but will not net you a felony rap. Now, repeated, multiple charges of animal cruelty on a large scale might, but it'd take some effort.
-----------------------------------
Again I respectfully disagree with the assertion; "Leave them locked up if they can't be trusted". That would lead to far more serious issues of "Prior Restraint" that what's been hinted at.

All the best

[FPrice]

"If they can't be trusted with guns, don't let them out of the pokey. To think otherwise is to have your logic stuck in reverse gear."

Now isn't THAT an interesting concept? Would you really want to give the government that power? Schumer, Feinstein, and Kennedy would be building mega-prisons for all of us.

The problem with discussing such a hot-button issue is that people are so afraid of abuses, both real and perceived, that rationale discussion amongst otherwise reasonable people is subordinated to rather unproductive exchanges.

[GregoryTech]

Now isn't THAT an interesting concept?

I think you missed the point slightly. How do you keep "a felon" who wants a gun from getting one? Someone who needs a gun to assist him in his crimes will get one. Someone who is a danger to others will find guns (or knives, or bats, or...) and kill regardless of the law.

[GregoryTech]

This is minimizing and not accurate

Actually, it's not.

You wouldn't believe the things that are now considered a felony. In Pompano Beach, FL, there is a sign posted next to the dumpster at the city stables. It is a felonly to illegally dump trash there.

[GregoryTech]

One of the problems with this exercise of discussing ex-felons' rights is that we tend to assume that the term "felons" describes a class of people with uniform characteristics and qualities. In truth felons comprise a wide variety of people with violent and non-violent tendencies. Satisfactory completion of a prison term may NOT also signify that a person is ready to resume the exercise of this constitional right

There is no way to keep weapons out of the hands of violent people free to roam society. All these laws do is keep non-violent, now law-abiding, ex-felons from owning a gun. The violent ones who want to kill again will kill again, with or without a gun. These laws will not keep guns out of the hands of those felons who "need" them in thier chosen illegal "profession".

[FPrice]

"There is no way to keep weapons out of the hands of violent people free to roam society."

I don't think that anyone is arguing that point at this moment. What we are discussing is at what point should SA rights be restored to someone who has completed a jail term for a felony.

"I think you missed the point slightly. How do you keep "a felon" who wants a gun from getting one?"

I did not miss the point, I responded to what was said. If what she said was not what she meant I am sure that Tamara will point that out.

This is not about keeping a felon or ex-felon from getting a gun. It is about not making it easier for said person to get a gun IF they continue to display behaviors inconsistent with responsible and legal firearms ownership. Her comment was, "If they can't be trusted with guns, don't let them out of the pokey.". As I pointed out if that is the only discriminator, then our anti-gun friends will have ALL of us in prison since THEY "know" that THEY can't trust US with guns.

[GregoryTech]

As I pointed out if that is the only discriminator, then our anti-gun friends will have ALL of us in prison since THEY "know" that THEY can't trust US with guns.

Scary. Good point.

But I still think you're twisting the meaning. If they can't be trusted not to engage in criminally violent behavior if they have access to guns, what are they doing out of prison? Because they DO HAVE access to guns once out. No law prevents it. (or Bats, or knives, or cars, or...).

[GregoryTech]

It is about not making it easier for said person to get a gun IF they continue to display behaviors inconsistent with responsible and legal firearms ownership

You mean criminal behavior? No, they should be in prison, and we're back on point.

[Tamara]

If what she said was not what she meant I am sure that Tamara will point that out.

What I said was exactly what I meant.

Every time I hear "Do you want a multiple murderer who's been paroled after eight years to own a gun?", my first response is "What the hell is he doing out of jail?" not "You're right! Take guns away from non-violent felons, too!".

[FPrice]

"But I still think you're twisting the meaning. If they can't be trusted not to engage in criminally violent behavior if they have access to guns, what are they doing out of prison?"

Probably because one of the cornerstones of our legal system is the premise that any particular crime has a finite sentence. You punish the person for that crime, hopefully with a prison sentence, the length of which corresponds to the severity of the crime, and then they are released back into society, their "debt" having been paid.

How can you keep a person incarcerated simply because you don't "trust" them?

This is NOT an easy situation or discussion by any means. On the one hand you want to protect the individual right to own firearms but on the other hand you need to have some way to protect society from those who cannot or will not behave responsibly. Can you do both and still be fair to the honest citizen?

[FPrice]

"Every time I hear "Do you want a multiple murderer who's been paroled after eight years to own a gun?", my first response is "What the hell is he doing out of jail?" "

No arguement there.

[GregoryTech]

Probably because one of the cornerstones of our legal system is the premise that any particular crime has a finite sentence. You punish the person for that crime, hopefully with a prison sentence, the length of which corresponds to the severity of the crime, and then they are released back into society, their "debt" having been paid.

This is NOT an easy situation or discussion by any means. On the one hand you want to protect the individual right to own firearms but on the other hand you need to have some way to protect society from those who cannot or will not behave responsibly. Can you do both and still be fair to the honest citizen?

I guess my point is that you're not protecting society with prior retraint laws. Released ex-felons who are violently inclined have access to guns and weapons no matter what the law says. If they want to go on a killing spree, they will. Released ex-felons who would never hurt another person except in self-defense are not a danger to society with a gun. Just like with any gun control law, the only people you disarm are those who are least likely to committ a crime.

And the focus on guns is bogus when this ex-felon has access to so many other items that can be used as weapons, including screwdrivers, drills, cars, bats, et al.

The situation is easy. Guns laws don't take guns out of the hands of potential criminals, ex-felons or not.

[Delmar]

I say the only reason you are putting a person in jail for a felony is because they have committed a violent, horrible crime. And Tamara has it exactly right-if you're good enough to get out of jail, then I assume you are working, paying taxes and all that like the rest of us. If not, we'll get back to you with a remedy...

One of the biggest beefs the colonials had against the king was taxation without representation, which means, and is slowly coming around, that you cannot deny a felon the right to vote once they have served their time.

You don't have to commit a felony to be denied the right to own a firearm-spank your kid and let the wrong person see it and you will have to give up your firearms, too.

Pot possession is a misdermeanor, but watch that Federal form on the question of drug abuse-its still illegal federally, so they have you on a misdermeanor drug charge and falsefying a federal document. That-I believe is a felony.

Keep pointing your fingers at all the others you don't agree with and you're gonna be like the bird hunter one day-shocked that the government is going to take their scattergun, but then they never lifted a finger for the black gun crowd, the rifle crowd, the handgun crowd......kind of like the 1930's German Jew.

The deal is, IMO, the second amendment applies to everyone-not just the priviledged or the wealthy or the powerful. Committ a violent deliberate crime with a gun-we should be able to shoot you off the porch of the court house with it.