the Court's forceful embrace of an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home" could create huge headaches for federal and state prosecutors in the day-to-day operation of the criminal justice system.As an advocate of individuals' right to carry, I may be biased in my view that Berman is correct: IMO declaring gun ownership a basic constitutional right has significant criminal justice implications. A past felony does not prevent an individual from possessing the right to free speech nor the Fourth Amendment right to be free from unreasonable searches. Even the right to vote is reinstated in Texas once their sentence is complete. Why should gun ownership be any different?
In my view, a serious commitment to the concepts and principles developed by the Court in Heller could impact many aspects of the day-to-day operation of modern criminal justice systems. As I have stressed before, felon-in-possession prohibitions and severe federal sentences might be subject to new attacks in the wake of Heller.
Berman points to an article in the New York Sun in which former Bush administration Solicitor General Ted Olsen was quoted saying courts may wind up splitting the difference, allowing more post-Heller gun rights for some felons but not others:
We're talking about a large number of folks. Texas has more than 2,300 separate felonies on the books, and around 70 percent of prison entrants committed a nonviolent offense. About one in 20 adult Texans currently are in prison, on probation or parole. What about their "right" to gun ownership?
"The Court might decide there are some classes of felons that ought to be treated differently from other classes of felons," a former solicitor general, Theodore Olson, said in an interview on Thursday about the prospect that the Supreme Court may eventually permit felons to own guns.Crimes ranging from murder to writing a hot check can count as felonies.
To be sure, notes Berman, "the majority opinion boldly and baldly asserts that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,'" to which Berman replies, "Really?" In a concurrence, Justice Stevens identified the disconnect, noting that "felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majority 'offers no way to harmonize its conflicting pronouncements.'"
In Texas, under Section 46.04 of the Penal Code felons' gun rights are partially reinstated five years after they complete their sentence, whether in prison or when community supervision (probation or parole), but they can only possess the weapon in their home. The Board of Pardons and Parole by rule will only reinstate gun rights earlier in the event of a pardon and if the gun is necessary for employment.
But if gun ownership is an individual right on par with free speech, the right to counsel, and the right to be secure from unreasonable searches, on what possible basis can a million plus Texans be excluded from that "right" because of a felony? If Texas reinstates voting rights when felons get off supervision, why not use the same rule for gun ownership?
In the wake of Heller, one imagines the gun-rights lobby will now be pulling out the stops to roll back restrictions on gun ownership through the courts and state legislatures. I wonder if some pro-gun legislator next year might propose rolling back that five year waiting period and eliminating the home-only restriction in Texas' 81st legislative session, perhaps based on the idea that Heller ascribes a "substantive right to hunt"? (!)
Bad guys who want to hurt somebody don't abide by gun laws, anyway, so these statutes by definition only influence the behavior of the law abiding. Why not make restoration of gun rights simultaneous with the restoration of other constitutional rights when an offender's sentence is complete? Wouldn't treating restoration of felon gun rights more like restoration of voting and other substantive rights be in keeping the with Supreme Court ruling in Heller?