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alan
February 28, 2010, 02:29 PM
The article below appeared in 28 Feb, Pittsburgh Post-Gazette.

If our side "wins" this one, it could well be a giant step forward for the rights of the law abiding, should things go the other way, who knows. In either case, I would expect that court room battles will go on for years to come, for the anti gun lobby is not likely to quietly fold it's tent and drift off to Nirvana.

In any case, I respectfully suggest that interested parties carefully read/reread the last paragraph, which makes mention of the "reasonableness" of some gun laws. How "reasonable" is spelled, could turn out to be a most interesting question, the answer to which likely depending on who is the speller. This is an aspect of the thing that bears close attention from gun owners everywhere, or so it seems to me.
Sunday, February 28, 2010
Under Fire
By Michael Doyle, McClatchy Newspapers
WASHINGTON -- State and local gun laws are in the crosshairs as the Supreme Court prepares for a historic oral argument Tuesday.

The conservative majority that struck down Washington, D.C.'s handgun ban in 2008 appears poised to stretch the Second Amendment further. The hourlong session Tuesday will let justices test-fire arguments in a case in which the reasoning could be as intriguing as the outcome.

For gun owners and lawmakers, the case called McDonald v. City of Chicago presents one bottom line: If the court agrees that the Second Amendment covers state and local governments, as seems likely, some but not all gun restrictions will be blown away.

For constitutional scholars, the court's means may be as important as its ends. In order to eliminate Chicago's gun ban, court conservatives could end up overturning a 137-year-old precedent that's hindered the expansion of new rights.

With the case so crucial, the sidelines are jammed. Forty-nine amicus briefs have flooded the court, representing groups ranging from Jews for the Preservation of Firearms Ownership to specialists in 17th-century English history.

The attorneys general for Florida, Texas, Alaska and 34 other states have urged the court to strike down Chicago's gun ban. So have a majority of members of Congress, and individual prosecutors from 34 California counties.

"The people's right to arms is inextricably tied to the equally fundamental right to defend oneself, to fight to save one's own life," Fresno County District Attorney Elizabeth A. Egan and her colleagues argue.

The U.S. Conference of Mayors joined 55 members of the House of Representatives and others in warning against expanding gun rights. Separately, Sacramento, Calif., Seattle and eight other major cities have urged the court to uphold Chicago's gun law.

"The 18th-century version of the right to bear arms codified in the Second Amendment ... imperils law-enforcement strategies with enormous promise in the fight against violent crime," the mayors group said.

The Second Amendment says that "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."

For decades, the "well regulated militia" clause incited debate but no definitive court ruling. Some called gun rights fundamental, enjoyed by individuals much like the right to speak or worship. Others, stressing the well-regulated militia reference, thought that governments had more authority to control guns.

The Supreme Court finally took sides in the 2008 case called District of Columbia v. Heller. In striking down Washington's strict handgun ban, the court's majority concluded that Second Amendment rights have nothing to do with militia membership.

"We are aware of the problem of handgun violence in this country," Justice Antonin Scalia wrote for the majority, "but the enshrinement of constitutional rights necessarily takes certain policy choices off the table."

Since that ruling, Justice Sonia Sotomayor has replaced the retired David Souter. She seems skeptical of expansive Second Amendment claims. In a 2009 appellate court case involving New York's ban on nunchucks, Justice Sotomayor joined colleagues in ruling that the Second Amendment didn't cover state laws.

District of Columbia v. Heller applied only to federal jurisdictions, because the Bill of Rights, as originally written, covers federal but not state and local governance.

To expand the Second Amendment beyond federal boundaries, court conservatives must figure out what constitutional provisions allow them to do so. The 14th Amendment, adopted after the Civil War, has been the standard tool for expanding other rights.

It declares that states can't "deprive any person of life, liberty, or property, without due process of law." This due process clause has been used previously to apply, or "incorporate," other Bill of Rights guarantees to state and local levels.

However, the 14th Amendment also declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." An otherwise obscure 1873 decision in what are called the Slaughterhouse Cases rendered this "privileges or immunities" clause toothless.

If the court overturns the Slaughterhouse Cases and revives the privileges or immunities clause as a way to end Chicago's gun ban, a potential side effect might give future plaintiffs another basis to argue for expanding other rights.

"It was never the intent of the 14th Amendment to strip the states of their existing sovereignty to protect and regulate the right to bear arms and replace it with a federal standard," Sacramento, Seattle and other cities argued in their legal brief.

Even if the court strikes down Chicago's strict prohibition, other gun laws will remain. Justice Scalia noted in the 2008 ruling that certain laws may still be reasonable, such as those that ban firearm possession by felons or forbid firearms to be carried in places such as schools and government buildings.

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wishin
February 28, 2010, 04:53 PM
I know there are some rabid "natural rights" people here that will disagree with me, but I agree with Scalia on the issue of firearms possession by felons. Schools are a different story.

danprkr
February 28, 2010, 11:17 PM
I am torn on felons having guns. On the one hand they have proven that they cannot handle the rights and responsibilities of full citizenship. On the other once the sentence is served they have paid their price.

35wailen
February 28, 2010, 11:19 PM
I am torn on felons having guns. On the one hand they have proven that they cannot handle the rights and responsibilities of full citizenship. On the other once the sentence is served they have paid their price.There's nothing to be "torn" about because they are deemed safe enough to be freed and have all of their rights restored (except this one and voting). Most "felons" nowadays are not felons in the honest sense because they frequently harmed NO ONE.

BCCL
February 28, 2010, 11:31 PM
If they took the ridiculous restraints off of the rest of us, felons with guns would probably be a steadily diminishing problem..........

Gungnir
February 28, 2010, 11:40 PM
I am torn on felons having guns. On the one hand they have proven that they cannot handle the rights and responsibilities of full citizenship. On the other once the sentence is served they have paid their price.

Since every American commits an estimated three federal felonies per day [source Three Felonies a Day: How the Feds Target the Innocent Harvey A. Silverglate 2009] the same could be said for all Americans. We've proven we cannot handle the rights and responsibilities of full citizenship, or alternatively the federal government and departments have created laws that can be interpreted to the point that everyone is a felon. Now even if that number seems outlandish, and it's a lot lower say one a week, or one a year, we're all in reality felons.

TexasRifleman
February 28, 2010, 11:42 PM
Since every American commits an estimated three federal felonies per day [source Three Felonies a Day: How the Feds Target the Innocent Harvey A. Silverglate 2009] the same could be said for all Americans.

This is an important point. To paraphrase Bill Clinton, it depends on what the meaning of "felon" is...

Is it someone who screws up his taxes one year too many? Could very well be.

Is that enough to restrict someone's gun rights forever? Apparently it is.

Is that right? Something to think about anyway.

ArfinGreebly
March 1, 2010, 03:40 AM
There was a time when a man who was jailed served his time and was released, had his personal property restored to him, and went his way unencumbered by special limitations on what he might now do with his life.

If he had achieved a personal redemption, he was free to conduct himself accordingly, living a better life than he had before, he right of self defense intact.

If he had learned nothing or had grown worse, he would sooner or later reprise his overt acts and either die in combat with "the law" or return to prison. The government made no attempt to follow him around, making him account for his past for the rest of his life. It could be argued that holding a man to account for his past, even after his sentence has been served, amounts to "cruel and unusual" punishment.

Today, after a felon has been released, a selected subset of his rights are restored to him, and the government becomes an anchor he drags with him in perpetuity, always ready to remind him that, even though we call it "corrections," he has not been rehabilitated and, indeed, will never be. Actual redemption is denied by fiat.

It isn't hard at all for that to be a self-fulfilling declaration.


Real rehabilitation is possible, but not politically expedient

In my mind, either release the man for real, unencumbered, and return him to the ranks of citizens, or don't release him at all. To do otherwise is to deliberately salt the population at large with people you never mean to trust, creating a plausible excuse for making the rest of the populace continually prove they aren't those (bad) guys.

Creating a circumstance whereby the whole of the population can never be permitted actual liberty, because the pool of people has been deliberately contaminated by persons who must never actually be free, is not a recipe for freedom.

alan
March 2, 2010, 12:37 PM
Arfin:

Your point of view is certainly interesting, and I do not believe that I have come upon it before, though possiblyI have, and just don't rwemember.

In any case, respecting the following from your post:

"Real rehabilitation is possible, but not politically expedient"

"In my mind, either release the man for real, unencumbered, and return him to the ranks of citizens, or don't release him at all. To do otherwise is to deliberately salt the population at large with people you never mean to trust, creating a plausible excuse for making the rest of the populace continually prove they aren't those (bad) guys", examples the above mentioned.

I wonder what others might have to offer.

ClayInTX
March 2, 2010, 12:52 PM
I dislike being a +1er, but Arfin has said what I wanted to say. So I’ll just have to +1 that.

I’ll also add that the Constitution is clearly written and I cannot agree with the Supremes legislating from the bench.

Their job is to determine if a law is constitutional; it is not a job for opinions of what the Constitution should have said.

TCB in TN
March 2, 2010, 04:59 PM
"In my mind, either release the man for real, unencumbered, and return him to the ranks of citizens, or don't release him at all. To do otherwise is to deliberately salt the population at large with people you never mean to trust, creating a plausible excuse for making the rest of the populace continually prove they aren't those (bad) guys", examples the above mentioned.

Yep, completely agreed. IF you are to big a danger to have your rights, then you are to big a danger to turn loose on the rest of us.

Cosmoline
March 2, 2010, 05:18 PM
The fact that felons are barred from the RKBA does not undermine the right itself. Felons were historically all subject to the death penalty (except IIRC mayhem, which was punished by public dismemberment that might not technically kill you). Every felony was punished by death. Later that was modified to permit "transport" to the colonies--essentially banishment. Over the past centuries the laws have been modernized and relaxed so that only murder carries death, and other felonies have a mix of conditions. But what remains is the notion that once you are a felon, you have lost a number of key rights and may never get them back. Whether that's an improvement over being hanged is debatable, but it is well-established. The founders would not be surprised that felons lost the right to vote or bear arms. They would be surprised that so few felonies were subject to the death penalty. A return to the old way would curtail the ever-expanding list of felonies.

Gungnir
March 2, 2010, 05:58 PM
The fact that felons are barred from the RKBA does not undermine the right itself. Felons were historically all subject to the death penalty (except IIRC mayhem, which was punished by public dismemberment that might not technically kill you). Every felony was punished by death. Later that was modified to permit "transport" to the colonies--essentially banishment. Over the past centuries the laws have been modernized and relaxed so that only murder carries death, and other felonies have a mix of conditions. But what remains is the notion that once you are a felon, you have lost a number of key rights and may never get them back. Whether that's an improvement over being hanged is debatable, but it is well-established. The founders would not be surprised that felons lost the right to vote or bear arms. They would be surprised that so few felonies were subject to the death penalty. A return to the old way would curtail the ever-expanding list of felonies.
Well it would depend on the crime that the felon committed for the "kind of" surprise of the FF.

In many cases, where theft, or violence was the crime, I agree the FF would be surprised that the felon retained his right to life. However in other cases, the FF might be surprised that the unconstitutional behavior of the Government led to that person being marked as a felon.

Indeed as Justice Brown said in Bannon ""The word felony was used at common law to denote offenses which occasioned a forfeiture of the lands or goods of the offender, to which capital or other punishment might be superadded according to the degree of guilt.". Do all felonies pass scrutiny of this definition, are all felonies potentially capital offenses?

Indeed, by barring felons, then it opens a class of people who are citizens who can have their rights restricted, and it's socially acceptable to boot. This gives government the opportunity and the means to restrict rights of others by reclassifying them as felons. At the end of the day Government defines who felons are, by agreeing that the government has the power to restrict rights of those so defined, this opens the door to some pretty serious potential for abuse.

As I mentioned in my post above, every American commits on average three federal felonies per day. Just because most of the time people aren't charged and convicted doesn't mean that these did not occur, and as we all know ignorance is no defense.

In the words of Ayn Rand
“There’s no way to rule innocent men.
The only power government has is the power to crack down on criminals.
Well, when there aren’t enough criminals, one makes them.
One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

YMMV

alan
March 3, 2010, 01:18 PM
Gungnir writes:

As I mentioned in my post above, every American commits on average three federal felonies per day. Just because most of the time people aren't charged and convicted doesn't mean that these did not occur, and as we all know ignorance is no defense.


If the above is true, then it would appear that there is a hellish large problem in this country.

One possible version of this "problem" being that the country is mostly populated by criminals, an assumption that, I submit, is seriously lacking in credibility. Another possibility, one that I submit is much more likely, is that our "employees" the "elected things" that we send to Washington D.C., where they make the nations laws, are seriously out of whack, in that they have virtually "felonized" heavy breathing, staying overtime at a parking meter and so forth and so on, unfortunately without end. It seems that these bums, the above mentioned "elected things" need to be pulled up short and told, in no uncertain terms, where to get off, as their antics are no longer acceptable to the vast majority of the populace, which strange to note, is and remains, I don't know why, law abiding.

ny32182
March 3, 2010, 01:34 PM
Barring "felons" from owning guns is one of those feel-good laws that in reality does nothing.

First of all, so many things are felonies now, that the word doesn't mean what it used to; it is a joke. 3 per day per person? Sounds a little high, but I don't doubt that every one of us, at some point, has done something that could have had us convicted as a "felon".

"Felon" should = bad guy, but that is often not the case.

But beside that point is the fact that the same argument applies to "felons" as applies to everyone else: guns and other weapons are a part of life; no law can stop a free man from getting one; those bent on hurting others will do so, and those who aren't, won't, regardless of the law. If someone is too dangerous to own a gun, they should still be in prison, because no law can stop them from getting one once they get out.

And put me in the camp of supporting restoration of all rights to someone once they are off parole. Either they have paid for/rehabed for their crimes, or not, make up your mind...

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