Thursday, July 03, 2008

Free speech, voting, other rights reinstated for ex-felons; after Heller, why not gun ownership?

In the wake of the Supreme Court's Heller decision ascribing to gun ownership the status of an individual "right," Doc Berman at Sentencing Law and Policy has been wondering whether:
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.

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.
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?

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:

"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.
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?

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?


ZMan! said...

This grants people their rights back, except if you are a sex offender.

Yet more proof the sex offender laws ARE PUNISHMENT.

I cannot remember which bill this is, but I do recall it saying, if you have been convicted of a sex crime, then you don't get your rights back.

Windypundit said...

Makes sense to me. To say that felons are too dangerous to own guns but not so dangerous that it's worth keeping them in prison seems...insincere. I don't like free punishments like this because there's a temptation to overuse them. If we as a society think someone needs punishment, we ought to be willing to pay the cost of imprisonment or probation or whatever.

Anonymous said...

I'd rather see a dramatic reduction in the 210 plus jobs x-felons in Texas cannot hold.

I'll take restoration of the right to gun ownership of course.

The right to work and become a full fledged citizen in the land of the free is another "extra" punishment that needs to be eliminated.

Anonymous said...

When it comes to paying taxes I am a people under the law but when I am barred from gun ownership due to a past felony conviction I am not a people referred to in the US Constitution. In many states I could not vote but I still pay taxes even though I cannot help choose the people who will be setting the tax laws in place. Still not a people! As a convicted felon not being a people, what the hell am I? I look like a people, I sound like a people, and I walk like a people so I must be a people. It too bad the US Supreme Court Justices don’t all think I am one of the people mentioned in the Constitution. If I can’t own a gun or vote in all states how about no taxes on my property and income? If I am not a people how can I be taxed? My dog is not required to pay taxes because he is not a people. I demand equal rights to my dog!

Anonymous said...

to 11:51....if one is an ex-felon, especially a sex offender, I think your dog has more of a chance of being treated fairly by the criminal justice system.

Anonymous said...

"Texas has more than 2300 separate felonies on the books."

Really? That's probably about 2000 too many.

My first question is whether this denying x-cons basic rights has the same racist origins as gun control. My guess is that the answer is "yes".

I don't see how anyone could reasonably object to gun rights being returned to non-violent felons after they have completed their sentence. Some might balk at returning them to felons convicted of a violent crime, but you might leave the 5 year waiting period in place for them and if they keep clean then they would have them -- all of them, not only the "just in the home" bit -- restored.

Anonymous said...


What you are misplaced about here is yes, there are certain incontrovertible constitutional rights that are afforded once a conviction, or time thereof, has lapsed. But the hypocritical and self damning judicial system, especially in Texas, is hypocritical. Systems, even for ex-offenders – non-violent are not reinstated in action…only in word. Take for instance, a felon that has been not been in any trouble, maybe a traffic speeding ticket, since they paroled in 1995…get them on the stand to stand witness for someone and the first thing a prosecutor does is what? CREDIBILITY YOUR HONOR – unless it will benefit them. (Crooked witness testimony from a felon). The places that sell guns, paperwork processed but a denial is inevitable…because of the felony conviction.

And let’s not forget…even in the recent case of Waller…most people plea, even in understanding of significant blamelessness because they do not want to take the likelihood of a longer sentence or even the simple humiliation for their families. I too, am a complete avenger for the underdog…but the Pharaohs’ in this story, especially Texas – have sealed their fate with the corruption and double standards they implement and yet do wrong themselves.

Most prominently, in alliance with you, a criminal weather convicted or not….if he/she were to remain “the criminal”…they really do not care what the law says….obviously…that is why they are the “criminal”. But a conviction doesn’t mean criminal….a conviction means either plead, scared, minority or innocent or found guilty by a jury who didn’t examine all the facts….or a judge who was equally as crooked as the convicted criminal. Um, guess I would have to invite them to my house to use the gun if I were determined to use it? Please, who is going to do that?

RE said...

gcgkhhpxxWhat influences my position is the fact that the first act of a tyrant is to confiscate arms of the citizenry. Smuggling arms into the threatened ghettoes of Europe was the highest form of heroism.

Gun registration is the next threat to liberty. Who would have access to the list?


Anonymous said...

Wow! I am impressed! There are people in Texas who have hearts. I had begun to think no one cared and if you ever get convicted one time, even a Deferred Adjudication, which is by law Texas Criminal Code 42.12 not a conviction, try getting this off your record. Our courts are in shambles and unfortunately, our Legisators have and continue to let this go on.

Maybe it is time to make big changes in Legislators and get some of the lawyers and those who have been bought by lawyers out of the Legislature. That is not a life time job but some think it is. Term limits would take care of that and also set term limits for the Governor and Lt. Governor, this might be just the beginning but it would be a start. What do you think?? Remember, those in the Legislature are not going to take this upon themselves, we need to boost this along.

Anonymous said...

This is a thread where I think most of you people have taken leave of your senses. Wow! Just wow!!


TxBluesMan said...

Felons don't have a right to possess a firearm, don't have a right to practice law, don't have a right to vote, don't have the right to serve on a jury, etc.

No problem.

Get convicted of a felony, loss of a right to have a gun goes with it.

Anonymous said...

Texas Blues Man: In response to your are incorrect a convicted felon can vote and their are certain "rights" that should be reafforded to them. I guess I should tell you to "cast the first stone" because you have never done anything. As for practicing law or getting licenses - a convicted felon should be able to still do that...they still have the "right to pursue happiness". I hope one does go to court for "life (included the right to practice law), liberty (to be free from minimum wage jobs when they have worked for a license) and the pursuit of happiness (if defending some is happy for them - defend on). To deny these licenses and rights are constitutional violations especially if they have successfully "did their time and finsihed their parole or probation." To continually punish is "cruel and unusual". Please~! Would some felon go to court on this????????????????? Most of the legislature and even attorneys and police officers have done wrong...plea bargained down or it was dismissed for strange reasons...they are the ones that need prosecution, dismissed from office. A former felon would be the best defense attorney...they will know the system, they will know their client and they will know the actions..........defend on

Anonymous said...

05:54 - you are full of shit! If denying the rights you mentioned were unconstitutional, don't you think by now they would have been challenged and restored by the courts? Sometimes you lefties, cause people, hand-wringers, moon walkers, and spoon-benders just send my eyes in perpetual motion.


Gritsforbreakfast said...

"If denying the rights you mentioned were unconstitutional, don't you think by now they would have been challenged and restored by the courts?"

Uh ... Plato ... SCOTUS just declared gun ownership a "right" about two weeks ago. Give it some time! That's what Ted Olsen was talking about. Some of the precedents your assumptions rely on may not be true any longer after Heller.

Anonymous said...

Grits - bet you a hundy the SC doesn't extend said right (guns) to felons.


Anonymous said...

In reference to Plato: 7/05/2008 02:41:00 PM Well, it appears your "Sometimes you lefties, cause people, hand-wringers, moon walkers, and spoon-benders just send my eyes in perpetual motion." Is the opinion of someone who desires not only continual punishment but a backwards and unconstitutional foundation of unspoken prejudice. Not only to mention your perverse dialect "full of s00" versus an intelligent debate of views and opinions...Well, you definitely only go by "Plato" because you lack the originality to construe your own destiny or name. Which also aligns with the lack of knowledge that SCOTUS just declared gun ownership a "right" about two weeks ago. And eventually, a felon will obtain a professional license....I would bank your redneck on it. Not judging...just observing by your actions. So, as the times are changing and the innocent are being set free, rights are being restored...slowly or not...they are being restored....I entrust a person who has made a mistake, will be granted the "same opprotunities" as their peers. So, educate yourself and come out from behind your sheet and defend the defenseless...that may be the one you need when you are in trouble. PS - Have a great day!

Anonymous said...

That's a very valid point. And I'd just like to throw in my little two cents. Isn't it a liberal ideal that we "rehabilitate" our criminals? How do we rehabilitate if we make them effectively outcasts and "not people" in some respects after the I know one individual case where a person made a mistake, 18 years ago, and has truly lived a normal decent life since his release. I'd rather see him with a gun in his hands then a lot of "city slicker politicians". I trust him more, at least. How did we ever survive before the GCA of 1968, when felons were presumably allowed to order guns from the Sears & Roebuck catalog? (OOPS! my sarcasm slipped out).

Anonymous said...

To all of you getting high and mighty about this topic, let me ask something... Does a felon retain his right to self-defense? Consider this... Joe Bankrobber robs a bank (duh...), rapes a teller and then shoots him (he's a demented criminal, what did you expect?), gets caught and does 30 years hard time.

When he's finally paid his debt to society and is released he takes two steps out the prison gates and is accosted by muggers. Does this felon not have the right to defend himself? If he fought the muggers off and injured or killed them in the process, wouldn't he still have a self-defense case to make?

Defending one's self and one's loved ones from imminent harm is an unenumerated, inalienable right and is protected by the 9th amendment. If those who would do one harm are armed, isn't it right to take up arms to defend one's self from them?

Anonymous said...

I was convicted of a non violent felony in 1986 (marijuana). Have not re-offended. When will my punishment end? Felons are serving in our military right now. Why? because the armed services can not meet recruitment goals. Odd that we can trust a felon with a gun while they are in the military but when they are discharged the government wants to take back their gun rights! I will bet that there will be a time when non violent felons gun rights are restored.

- Felon in North Carolina

W. W Woodward said...

It's about time a felon becomes an ex-felon once he serves the statutory sentence for his crime.

As it stands today once someone is convicted of a felony he receives a life sentence no matter the severity of the crime and no matter the statutory punishment for the specific crime. The question here hinges upon the right to keep and bear arms lost as result of a felony conviction

Some of you may not realize, not only does the felon lose his Second Amendment rights – so, to a certain degree, do his family and friends. The felon is forbidden to visit in a friend or relative’s home where firearms are kept. The felon cannot possess a key to his grandfather’s (or anyone else’s) home if the grandfather keeps a firearm in the house. The felon’s spouse cannot own a gun and keep it in the house where she and the felon live. It may be that a felon’s spouse cannot own a firearm, period, if they live in a community property state (Texas). The felon cannot go shopping with his family if they intend to go to a Walmart where firearms are displayed and/or sold. The list of prohibited acts goes on and on. The Texas statute allowing a felon to keep a firearm in his home five years after his sentence has expired carries no weight with the feds.

While I’m on my rant:

A misdemeanor conviction at any time in your life of any level of an assault, from a mere threat to an actual injury causing action, no matter the severity of the injury (a slap, a shove, a punch, merely restraining someone to keep him from harming you, spanking your child) that can in any way be construed as being directed against a family member will result in the cancellation of your 2nd amendment rights and a felony conviction if the feds catch you with a firearm.

If you’re under a protective order as a result of a divorce being filed and you possess a firearm in your home or anywhere around your person your 2nd Amendment rights have been suspended and you’re committing a felony.

If you think I’m exaggerating, ask one of your BATFE acquaintances if what I’ve said here is true.

Anonymous said...

Regardless of what Justice Scalia said, SCOTUS does not consider the 2nd Amendment to be a "fundamental right". Regrdless of the hoopla, all 9 justices agreed the word "infringed" has no validity. Which begs the question: Since the definition of infringed is the same today as it was in the 18th century when the Bill of Rights was ratified, exactly what part of "shall not be infringed" remains unclear, even to hypocrites in black robes?

Anonymous said...

There are too many felonies. Keeping a fish that is 1/2" too short or too long is a federal felony!

There are some really scary people who should be locked up for a long long time. There may be people who need to be supervised and controlled throughout their lifetimes. But currently, our system is stupid and unbalanced in terms of crime and punishment. There was a time when gambling was illegal. Now it's run by the state. Let's get rid of the malam prohibitum type crimes. Let's get tougher on the crimes that hurt others.

A said...

There is an interesting video diary that this guy has done - has some interesting perspectives about the guns, oil, the economy, etc.


W. W Woodward said...

I’ve just read an AP story on Yahoo News that says a fellow by name of James Francis Barton Jr. is planning to challenge the federal law that (as far as the 2nd Amendment is concerned) makes a person a felon for life if that person is ever in his life convicted of a felony crime.

It is alleged that several firearms were discovered in Barton’s home and as a result he has subsequently been charged with the federal charge of Felon in Possession of a Firearm.

Barton is claiming that even though he has been convicted of 2 felonies in the past, the recent U.S. Supreme Court’s DC v Heller decision allows him to keep firearms in his home for self defense purposes. He insists that an individual who has completed his felony sentence and has been freed should have the same right to defend his life, his loved ones, and his property as do all other people.

One of the interesting concepts mentioned in the AP story is that apparently once an individual is convicted of a felony, the federal government considers that person to be “untrustworthy” for the rest of his life no matter; how long ago the felony was committed, how inconsequential that felony may have been, or even if what the individual did is no longer a felony offense. If these people are so evil, nefarious, and untrustworthy why does the state; release them from prison, allow them to vote, allow them a drivers license, allow them free movement, allow them free exercise of religion and free speech when their sentence is completed?

If a person is such a sociopath, and/or evil individual that he cannot ever be trusted to exercise all his fundamental rights protected by the Constitution he should never be freed from prison in the first place. If he is not to be included in the Constitution’s phrase “the people” he should never be allowed to mingle with “the people”. I’m sure there must still be a place where these folks may be placed (maybe Manhattan or some other island paradise, like Gitmo) so that the rest of us will not have to resort to branding, amputation, embroidered stars to be worn on clothing, or some other readily recognizable signs of social stigma in efforts to further distance ourselves from these unclean creatures.

As this - "Free speech, voting, other rights reinstated for ex-felons; after Heller, why not gun ownership?" - discussion has been moved to the bottom of you Blogpile I am also entering this same post on a couple of my favorite pro-gun blogs.

Anonymous said...

If the Bill of Rights is legitimate and substantial, then ALL gun control legislation is unconstitutional and illegal. Regardless of whose fears they may ease.

As for convicted felons [of any stripe] possessing a gun [of any kind...] If you're afraid of facing one of these "animals," then possess and operate a gun of your own, just in case. Afterall, it's your inalienable and uninfringable RIGHT!

ex-felon said...

o.k. jefferson said ,a country that fears its goverment is teirney,,,and goverment that fears the people is liberty..I am a ex felon..did time from 84 to 87....I still took my son hunting and fishing,,and never told him of my past till he was 16....I rasied a man not a blew his mind I did time..and said he was glad he didn,t know till then,,because he knows his dad now and it makes no evermind...he,s now a lcpl in the marines..can,t buy a beer or buy a hand gun..yet their taught since 9/11..they are moving targets..even taught not to hold a child while in uniform.puts them in danger....jefferson also said the safest this country will ever be is a malitia with squirral guns...good men sometimes do bad things..let the people dicide not the gov.who they are....I don,t mean to snub my goverment..I do belive in a land of laws not men..but I refuse to let them decide how to do this or that..their not there to be in my life ,,just run the books to my country....hell a ex-felon can,t get a job driving the city bus .or weedeating the city greatx3 grandaddy fought in the daughter a D.A.R. they refused to be told this and that..and I the same...I love God and country.but I only fear one ,,,,,,God

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Mikey said...

Today I'm 40. When I was 17 I stole a car stereo from a dealership. Never did anything else against the law. Is it right that all these years later I can't get my CHL? That I can't protect my family while we're out and about?

Sure wish something would change on this front, as I know I'm not the only one amongst us who screwed up as a kid.

Not to mention the difficulties I have with job searches. You'd think I was a mass murderer with the way employers run when I answer yes to the felony question. But I digress.

Hung one said...

I'm a Drilling consultant. According to the major oil company I work for I can decide on a whim and sign a work order or tool order for up to 2 million dollars. I was convicted twice of forgery. Once I did it the second time I was caught in an online scam. Of course with a prior conviction they didn't care. Neither felony was above a state jail level.... in Texas that's a new felony level below third degree but just above a misdemeanor. .... Icant have a fire arm. My dad is a federal police officer an has been a peace officer for 48 years. I can't even go inside his house. Not from him .... but according to the LAW. People its time to revamp the classification system an exclude non violent crimes from a lot of checks. I have an unrestrained 2 million dollar signature. But I can't shoot a deer with my son. And its too iffy if someone breaks in my home to hurt my family for myself to own a weapon to help them. I grew up shooting. Have several medals showing my excellent aptitude on a firing range and papework showing scenario shooting from the NAVY. I'm a Vet with a non violent crime. Where's my Right to bear arms?

ellis pepper said...

Former marine,
I served my country willing to die for it and still would. I can't stand the way our government has become, card carrying commie in the white house, not to mention the sorry one there now. I commited a white collar crime. tried to get it deffered, however they wanted to hang me. it was not intentional, never the less I was guilty. I have hunted for many years. My daughter aged 10 this year killed her first deer and I could not be there. It's a disgrace that I can't teach her things she needs and loves to do , as well as be a part of that with her.
Even though a crime is a crime, that doesn't mean that anyone who commits a crime is unstable and incapable of possing a firearm. Someone please explaine the logic of these crazy laws that have been put in to place ??? I say its to rid our country of as many legally possessed guns as possible.

can someone please tell me how to get my full rights restored?

ellis pepper said...

Former marine,
I served my country willing to die for it and still would. I can't stand the way our government has become, card carrying commie in the white house, not to mention the sorry one there now. I commited a white collar crime. tried to get it deffered, however they wanted to hang me. it was not intentional, never the less I was guilty. I have hunted for many years. My daughter aged 10 this year killed her first deer and I could not be there. It's a disgrace that I can't teach her things she needs and loves to do , as well as be a part of that with her.
Even though a crime is a crime, that doesn't mean that anyone who commits a crime is unstable and incapable of possing a firearm. Someone please explaine the logic of these crazy laws that have been put in to place ??? I say its to rid our country of as many legally possessed guns as possible.

can someone please tell me how to get my full rights restored?

Anonymous said...

I say ten years! 10 years of being good after you have been off paper and you get your gun rights back automatically! Because lets face it if your a real screw up you will never make 10 years with out getting into trouble. It shouldn't matter what the crime is, it's the 10 years that shows the ability to stay out of trouble. A crazy murderer or sex offender would never make it 10 years after parole with out repeating the crime, and if they want to get legal owning a weapon again then that's incentive to be good. No one should be a victim not even people who have made others victims. Don't be surprised if it's the ex-con sex offender who shoots the man raping your daughter!