Saturday, August 29, 2009

North Carolina Supreme Court finds ex-felons have gun rights; Texas Constitution has stronger language, could it happen here?

Eugene Volokh at the Volokh Conspiracy and Doug Berman at Sentencing Law and Policy bring word of an opinion issued yesterday in Britt v. State (available here) by the North Carolina Supreme Court finding that some felons have a "right to bear arms." The case involved a man with a felony drug conviction from 1979 with a clean history thereafter.

The ruling was based on North Carolina's state constitution. While I'm not a lawyer, from the descriptions by these two law professors it sounds like North Carolina's constitutonal right to bear arms is actually less strong than ours in Texas'. According to the North Carolina opinion, their constitutional standard reads 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.” This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly’s police power, but that any regulation must be at least “reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.”.
So their standard reads much like the Second Amendment to the US Constitution, but the Tarheel Supreme Court was more fearless than Justice Scalia in noticing that there is no textual constitutional language limiting "shall not be infringed" to non-felons.

Given this ruling, I wonder if Texas might not prove fertile ground for pursuing ex-felons' gun rights? We've got more than a few pro-Second Amendment lower court judges, plus our constitutional standard is much more strongly stated as an individual right than the federal version or North Carolina's. Article 1, Sec. 23 declares, "RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

So if North Carolina's state constitution conveys a right to bear arms for ex-felons, the plain language in Texas' Constitution seems even more favorable to such arguments. Our version more firmly grounds the right with the individual instead of the needs of a "well-regulated militia," and it expressly incorporates self-defense as a justification for the affirmative right to bear arms.

Of course, in Texas the question often isn't "what is the law?," but "who is the judge?". And over the last decade on the Texas Court of Criminal Appeals, the winds have not blown favorably on behalf of arguments for extending rights to offenders - even those from long ago. That's a strong argument for pessimism on the prosepects for extending gun rights to ex-felons, to be sure.

OTOH, it's remarkable to see North Carolina cross this philosophical Rubicon, and I can't help but notice that the plain language in our state constitution seems more receptive, even, to such arguments than theirs.

I'm glad Volokh and Berman are tracking this issue; it's definitely going to be one to watch playing out in the courts over the next several years.

27 comments:

Anonymous said...

As if felons didn't already carry!

Gritsforbreakfast said...

So put you down in favor, then? ;)

Anonymous said...

How does this ruling apply as it relates to federal firearms laws and felons in possession?

Shane said...

Wait. You're not a lawyer?

I am embarrassed to say that I've been reading this blog for over two years and I had always assumed that you were some kind of a criminal defense lawyer. Maybe it's because it was lawyers who first introduced this blog to me.

Clicking over at the "About Me" link tells me quite a bit about yourself that I wish I had known before. I guess we still learn new things every day.

Anonymous said...

Don't worry Grits, I've been accused of being a lawyer a time or two myself. The last time went something like this.

Are you sure you're not a lawyer?

Yes, I'm sure.

Well, you sure do think like one.

Thanks, I think.

So, thanks for the company Grits, I think.;)

Gritsforbreakfast said...

Re how this applies to the feds, see the comments section in the law professors' blogs for differing views. I really don't know. The commenters on the law prof blogs seem to come to different conclusions!

Shane, hope you'll excuse any confusion caused by not making that disclaimer more often. (That reminds me, I need to update that About Me page to reflect that I lost the Innocence Project gig.)

I try not to "think like a lawyer," but rather, I know how lawyers think - both good and ill. There are times and places when IMO "thinking like a lawyer" isn't very constructive. But FWIW, I've been around them my whole life both personally and professionally. I suppose something's bound to rub off.

Anonymous said...

I doubt seriously Texas will expand the right to possess firearms. In Texas a felon can't own or possess a bullet proof vest which is strictly a defensive device. So felons don't be delivering pizzas to the bad part of town because you can't have a vest!

Texas like most states make a felony conviction a life sentence. The politicians routinely strip away constitutional rights as if felons were not "People" any longer. Felons are not allowed numerous jobs even if the conviction is decades old. The rights of the People shall not be abridged means little to the politicians of today. If one reads the writings of the founding fathers you will see they had a much different view than courts and politicians have today.

Any time you take the rights of one group (felons) you can expect to see other groups added as time passes. The President's Chief of Staff wants to add people on the "No Fly List" and people with bad credit histories to the people who can't have firearms. One day all of the "People" will be on some list that bars them from firearm ownership if this trend continues. You say it can't happen in the United States, look at Australia and Canada!

The founding fathers had a reason for arming the citizens. They wanted to protect the government they formed and many died for. An armed populous is a major block to those who would destroy our country. Ever stop to think why Japan or Germany never tried to land troupes on our mainland? They knew we were a heavily armed people and their casualties would be too high.

I remember a day when felon or not you could own and carry a long gun in your truck. I am here to tell you it was a hell of lot safer back then! The last thing we need is a pack of judges and politicians bending the Constitution around to protect them from us. The local, state, and federal government cannot protect you, only you can protect yourself. By the time law enforcement get there it has already happened in most cases. I think it is criminal that any politician or judge would strip you of the right to defend yourself for any reason. As I said, I remember how much better things were before the politicians and judges took it on themselves to protect me.

patm said...

I am a former gun owner who lost his right to bear arms when convicted of possession of a controlled substance in Texas ten years ago. I have always wondered what caveat grants the state or feds the authority to remove rights. Under the second amendment a right, not a privilege is granted to US citizens. SInce my conviction I have been sober, never been in trouble with the law, earned a degree, and now have a family. I have done my best to somehow remain in the mainstream of society despite my relegation to the ranks of "criminals". I have a particular resentment toward the idea that I continue to be punished for a crime I committed against no one but myself. My punishment comes daily in the form of scrutiny during background checks and zero tolerance policies regarding insurance coverage, hiring for jobs, financial assistance for education, and securing a place to live. It is amazing that I am able to scratch out a living at the bottom end of the diminishing middle class at all. Facing the odds, I sometimes wonder if my efforts will eventually be in vain unless I somehow become independently wealthy since I am continuously denied the opportunity to advance myself up the food chain. For every felon like me there are probably a hundred who go in the opposite direction because of continued punishment after the sentence has been served. I guess the point I am trying to make is I believe that denial of constitutional rights is a systematic effort to create and maintain an underclass of "citizenry" who can always be there to help out cleaning your restrooms, changing your oil, cutting your grass, and performing whatever else is beneath your sensibilities.

Anonymous said...

Seems like that clause in the Texas version about "preventing crime" would provide all the justification the TX courts would need to prevent arming ex-felons.

Then it would get appealed to the fed cts. Would they strike down the TX clause as being in violation of the 2nd amd?

This seems to pit two political instincts of conservative jurisprudence against one another: punitive "law and order" vs an "originalist" interpretation of the 2nd amd that emphasizes the individual right to bear arms over the "well-regulated militia" part.

Interesting.

Bill B.

HadEnough said...

Anonymous, your statement that "Texas like most states (as well as the fed) make a felony conviction a life sentence. The politicians routinely strip away constitutional rights as if felons were not "People" any longer. Felons are not allowed numerous jobs even if the conviction is decades old," gets right to the crux of the matter. The loss of the right own a firearm is only a small part of the price the felon pays forever. Regardless of "degree" (for lack of a better word) of involvement the felon is condemned to a life sentence. For example, the young woman charged with conspiracy in a drug case but only sentenced to 12 months probation because her "degree" of involvement was so little, suffers the same lifetime stigma of a felony conviction as someone convicted of much more serious, even violent crimes.

PatM says "Since my conviction I have been sober, never been in trouble with the law, earned a degree, and now have a family. I have done my best to somehow remain in the mainstream of society despite my relegation to the ranks of "criminals". I have a particular resentment toward the idea that I continue to be punished for a crime I committed against no one but myself. My punishment comes daily in the form of scrutiny during background checks and zero tolerance policies regarding insurance coverage, hiring for jobs, financial assistance for education, and securing a place to live," and there are countless other examples of those who suffer from what we call "justice." There is no justice here only vindictive punishment and it never stops.

Many states have provisions for seeking expungement of a felony record but many states as well as the Fed do not. There has been legislation introduced to remedy this situation on the federal level for the first time non-violent offender. H.R. 1529 the “Second Chance for Ex-Offenders Act of 2009” is the current version. This legislation has been introduced to every session of congress since the year 2000 and has been allowed to die in committee every time. While our politicians hold hearings, pontificate and call for reform, they allow this most human and humane piece of legislation wither on the vine and die. H.R. 1529 is no free ride. It only offers an opportunity. Politicians decry the high cost of everything associated with our judicial system, they rail against the high rates of recidivism yet do nothing to pass legislation that will provide the most important piece of the reform puzzle. The ability to find meaningful employment and return to society without the constant reminder of past mistakes. Talking heads on television from "Liberal" MSNBC to "Fair and Balanced" Fox, commenting on those like Michael Vick and other high profile personalities, shout out that "He has paid his debt," "everyone deserves a second chance" yet have nothing to say in defense of the ordinary citizen who is simply trying to put their lives back in order. Where is the outrage about their treatment? Another dead on statement by PatM is this, "For every felon like me there are probably a hundred who go in the opposite direction because of continued punishment after the sentence has been served." How many more of these would have taken the "right" direction as Pat did if not for our unjust justice system?
If anyone is interested, there are groups working hard to get meaningful reform legislation like H.R. 1529 passed. You can find information and petitions at sites like change.org, support of H.R. 1529 at Yahoo groups among others.

And BTW Grits, the reason I, a non lawyer, enjoy your Blog is your perspective as a non lawyer. A little "common sense" and "logic" now and then is refreshing. Hopefully, coverage of these issues by people like you and Professor Berman will call attention to them and perhaps someday result in something good for those who are currently being over penalized.

Anonymous said...

"I have always wondered what caveat grants the state or feds the authority to remove rights."

We the people allow it to happen. On the other hand, to speak out and protest today labels you as an "angry mob, Nazi and UnAmerican."

Some smelled "change" in November, I smell other change about to happen.

Anonymous said...

I am ok with certain felons possessing firearms; however, if you have been convicted of a Title V felony, you should lose that privelege for life.

George F. said...

Thanks,Scott, for keeping us informed.

Texas has a lot of "felonies" that have no relationship as to whether a previously convicted person should be restricted from being able to protect themselves,their family, or their home, such as DWI, evading detention with vehicle, theft, low level drug offenses,just to name a few.

I have watched uncomfortably for years as the Texas legislature and the feds have slowly chipped away at 2nd Amendment and Texas Constitutional rights.

Yes, there's "shall issue" CHL and so forth but look at the restrictions on it.

And then there's the whole "family violence" list of future firearms ownership problems associated with one or both of the parties to a "family" disturbance picking up the phone and calling the constabulary.

The whole Texas Felon in Possession statute is a crock as it has been amended slowly over the years; to say nothing of the ever-increasing federal move to gain control over traditional state matters.

For those of you who say "I don't have to worry about such things since I would never be in the position of being charged with a felony..." see what can happen to you if you are driving your 14 year-old home from the movies, with a hint of alcohol on your breath, and get stopped for the horrendous crime of having a burned out tail light.

Every time the legislature meets we see more and more "felonies".

Be careful when you start taking away fundamental rights from various groups in a society. History teaches us that it could be your "group" next.

And yes, I am a lawyer who happens to be a retired Texas master peace officer and prosecuting attorney with 41 years in the so-called "criminal justice" system.

Pirate Rothbard said...

Interesting story.

As for the constitution, its original intent died many years ago, so who cares whether they really have the right to bear.

But there is something to be said for letting felons carry fire arms. There are only so many resources that law enforcement and parole agencies can provide.

Anonymous said...

Something to be aware of, that caveat with article 1, section 23 of the Texas State Constitution was amended in, in the 1950s. however, there is an overriding clause within that texas bill of rights.

Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

The part in italics was amended in.. however, this does not comport well with:

Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

At that point, amending it to be within the power is outside of the power of government, under the original intent.

Anonymous said...

Anon@2:13 .. Title five is broad and over reaching. there are a couple of offenses on there that have nothign to do with real violence and need to be taken out.

Anonymous said...

Well, I know there are at least two classes of felons that never need to carry a firearm. Those individuals that are prosecuted for felony graffitti and anyone who abuses oysters ;)

TxBluesMan said...

The CCA has already ruled on this issue, pre-Heller, in Shepperd v. State, 586 S.W.2d 500 (Tex. Crim. App. 1979).

This decision held that "[t]he statute does not infringe on the provision of the Constitution." Shepperd, at 502, in explaining that the statute in question was within the bounds of a reasonable regulation by the legislature.

If specifically stated that there was no constitutional violation:

"As we have held again today, the Texas Constitution does not protect the possession of firearms by a felon. The same is true of the United States Constitution." Shepperd, at fn4, 504, internal cites omitted.

I guess that they could address the issue anew in view of District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783 (2008), but that is pretty much foreclosed by that opinion which stated:

"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession [*2817] of firearms by felons..." Heller, at ___, 2817.

In the case of Texas, it will not only matter who the judge is, it will take overturning the Shepperd (and preceding) decisions of the CCA - which means that the case would have to reach the CCA since lower courts are bound by the higher court ruling on the matter.

I don't see it happening...

R. Shackelford said...

I don't see this happening, but imo it doesn't really matter, I'm a firm believer that many laws are unconstitutional these days. As Heinlein stated, "I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do." I don't believe the state has the right to deny any man the ability to protect his home and property. The state... has an inflated opinion of it's powers.

Anonymous said...

"Well, I know there are at least two classes of felons that never need to carry a firearm. Those individuals that are prosecuted for felony graffitti and anyone who abuses oysters ;)"


Oh hell no, We should never allow those oyster law breakers have a gun again. Did you know that Oyster criminals are 400 times more likely to commit another oyster related offense versus all other criminals.. And their re-offense rate is so terribly high. Maybe we should get Nancy Grace on here so she can make an Oyster criminal commit suicide live!

Anonymous said...

Only a person who adheres to situational ethics would say the original intent of the founding fathers has no meaning today. All of the founding fathers were considered to be criminals. They would have faced the death penalty had the war been won by England. Should you delve into additional writings on the Second Amendment by the founding fathers you will clearly see they thought self defense was a right that should not be abridged by the government. The framers of the Constitution and Bill of Rights were of the opinion "People" had natural born rights. When a government makes a right into a privilege then the government has overstepped its bounds.

Only a government who fears its citizens will operate in the manner devised by the founders. A government who wishes to control its population will disarm and strip the rights of the people away. Often it is done in small steps. Our current Federal Administration has advised state law enforcement agencies to be vigil of Constitutionalists, gun owners, returning vets, Ron Paul supporters through the Fusion System. Those of us who believe in the Constitution and Bill of Rights are now considered potential terrorists by our own government. Seems we may be viewed in the same light as the founding fathers of the country.

In the country where my grandparents came from, first they took away all the guns to make the people safe. Hitler said making guns illegal would create a safe and modern society. When the people were disarmed Hitler crushed the people and slaughtered millions. My grandparent's family was never heard from again after Hitler's tanks arrived in their town. My father told me many times when the government starts to take the guns from the common people they then want everything you have, even your life.

I guess you can have many grand political ideas about making things better or safer until you have lived through the results of such political ideas. Many of the people alive today have no memory or connection to the history I speak about. The young people do not fear the government as they should. It seems many people have not a care in the world as long as the beer and football lasts.

The Constitution and the Bill of Rights means the same today as it did the day they were written down. The founding fathers knew exactly what they were doing to uphold the vision they held for our country.

Anonymous said...

I would like to add my comment to those above. After a sentence has been completed,including Deferred Asjudications, those completed sentences should be removed from the record of the person. Give everyone a chance to be a healthy, happy person.

For some reason, our Texas Legislators and some very vendictive people believe one never changes; well I am telling you, people learn and some for the better and the more a person is harrassed and deprived of the right of freedom, justice and the right to work, live and find happiness should not continue to be taken away.

Ever wonder why some come out of prison angry, bitter and filled with hate? They are treated badly, not like a human, a child of God, but as though they were worthless and needs to continue to suffer for the rest of their lives for a mistake made without thought, or in youth or for whatever the reason.

I ask all of you to watch who you send back to represent you. Some are only there for the glory and not the good of anyone but themselves. Some have been there too many years and there should be term limits, the sooner the better. If any of you agree, I have learned there needs to be a referendum and many signatures listed to get this put on the ballot. Think this over, we are not be represented, we are being used to further the future and big headiness of some elected officials who have been in office far to long. Those in office have lost the reason they were sent there and it has become all about them and not about us.

Stigmatized said...

NC. forbids alcoholics from having Conceled Carry Permits, because alcoholics are deemed to be mentally ill by the American Psychiatric Assocation. It dose not matter that you are not a criminal, or that you have never been in trouble with the law; if the mental health department knows you drink or have drank in the past,or worse yet used illegal drugs, you will not get a concealed carry permit. Simply put our rights are not worth the paper they aer written on.

Anonymous said...

Just seems to me that if a person has completed his or her sentence and has been in good behavior for a period of at least ten years and has been given his or her civil rights back then and only then should there gun rights be given back. That is if the felony is that of the non violent nature. Now come on goverment dont you think that is fair? A gun is just a weapon like a knife, a ball bat or any other foreign object that can kill. I think the Federal goverment should make admendments to there gun laws that exclude non violent fellons with a good record for say ten years. This would with out a dought lower the crime in this country.

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