A federal district court ruling last month ruled that a Connecticut law which bans all felons from being precious metal dealers is unconstitutional, because the law failed to establish any rational basis for doing so regarding any number of felonies that don’t have elements that would be of concern to someone dealing in precious metals. Eugene Volokh points out that this is very similar to the law which bars all felons, violent or non-violent, from possessing firearms. Though he does note that the ruling is quite out of step with how the courts typically do rational basis analysis, and he expects it to be overturned on appeal.
But I tend to think there has to be some limit on the power to strip people of their right to keep and bear arms due to a criminal conviction. Otherwise what is to prevent a state from arguing that even traffic offenses are disabling? Clearly if you misuse an automobile in an irresponsible manner, we can’t trust you with a gun, can we? It would pass rational basis review. But it has to have its limits. Likewise, even under present law, a woman could be stripped of her right to keep and bear arms for pushing her husband out of the way while storming out of the house during a heated argument if the husband and/or police and prosecutors wanted to make an issue of it.
“Likewise, even under present law, a woman could be stripped of her right to keep and bear arms for pushing her husband out of the way while storming out of the house during a heated argument if the husband and/or police and prosecutors wanted to make an issue of it.”
Sadly, in my jurisdiction, just such cases are often brought. We’ve gone from domestic violence being ignored – bad – to domestic violence being a witch hunt. Also bad.
“We’ve gone from domestic violence being ignored – bad – to domestic violence being a witch hunt – WORSE.”
The construction of our justice system clearly expresses the belief that it is better to let a guilty man walk free than to unjustly punish an innocent man.
One could pursue the philosophical argument that if something is a “right,” it cannot cease to exist, if can only be denied by The State. The holders of those denied rights cannot then be blamed for any steps they take in resisting that denial, especially if it is expected to be permanent.
I think our gun culture, in its fervor to forever polish our image as Law-Abiding Citizens, has always gone overboard in its advocacy for denying fundamental rights to anyone that doesn’t come up to some ideal for being a Good Citizen. With things like “CrimeStrike” and “Project Exile” we came down fore-square for expanding the power of those entities most seeking to deny our own rights; then often complained about the outcomes. I suppose the theory was that by reducing crime via deterrence, we would reduce the political pressures to violate our gun rights, but that demonstrably has never worked.
I wonder how a decision such as the one cited might affect those many states that deny ex-felons the right to vote, after they have completed their sentences? What is the rational basis for doing that? Are their votes more dangerous than those of the thousands of Law-Abiding Citizens who may be expected to vote for the same candidates?
The possibilities for questioning rationality seem endless, and many answers can be provided by recognizing we just like to deny rights to people we don’t like very much.
“One could pursue the philosophical argument that if something is a “right,†it cannot cease to exist, if can only be denied by The State.”
Speaking in the most general of terms, the only legitimate purpose of the state is to maximize liberty on an individual basis. Thus, the state arguably has the duty to restrain those who have a history of abusing their liberties to infringe upon the liberties of others.
That being said, I subscribe to a somewhat loose interpretation of the Codrea position: If someone cannot be trusted to responsibly exercise their rights, then they cannot be trusted without a custodian.
Such a custodianship (prison, probation, other supervised release, etc.) should be subject to judicial review at least once a year, and upon termination thereof all rights/responsibilities should immediately be restored.
I’m probably pretty much where you are philosophically. The current prohibitions ultimately only disarm persons who aren’t inclined to commit further crimes, and unlike what much of the population thinks (or doesn’t think, to be snarky), I think depriving someone of effective tools of self-defense is actually not a trivial thing.
But that’s not to say that depriving someone of a right is unconstitutional. It’s generally regarded as fine to deprive people of rights through due process of law, otherwise we could never throw anyone in prison to begin with. I also don’t think all deprivations have to look like prison, and modern forms of that are probation, parole, etc. However, I do think it needs to be apparent at sentencing. In other words, Congress could pass that as a sentencing provision saying, “If you’re convicted of X, you lose your right to bear arms,” but they can’t reach convicted persons retroactively and say, “All people convicted of X can now no longer exercise their rights to keep and bear arms.” To me that’s a a violation of due process rights, because that wasn’t on the table when you might have plead to something. I think part of due process is knowing what you’re putting at risk when you choose to take a plea or go to trial. Altering the deal shouldn’t be permitted. But that’s a due process concern more than a RKBA concern.
But that’s all theory, and I think theory is fine and dandy, but at some point it has to meet the real world, and in the real world people are fine with depriving felons of their right to bear arms in ways I don’t approve of, or don’t think is effective. The laws on prohibited person have one practical purpose, from our point of view, they make people feel good. A lot of people put no value on that, but there is value, in that someone who feels satisfied by the current law won’t advocate or vote for more laws.
A lot of people in this issue love to tilt at windmills. I don’t really have the time or energy to do so. I think philosophy is important, and it’s important to pass those ideas on to people well-engaged in the issue, because those ideas are your future. But you have to pick your battles, and I don’t believe gun rights for felons is a smart place to fight. There are places we can probably push here and there, but we’re a long way from being able to fight that battle.
Clearly, there is a lower limit below which no rational person could argue that a conviction would deny fundamental rights. One of Larry Niven’s short stories is about a future where demand for transplantable organs is so strong that the state governments execute convicted criminals by parting them out. At the end of the story, we find out that our protagonist risks his life to get out of jail because he has been convicted of the capital crime of jaywalking. Obviously, no rational electorate would do something like that. Or would they? Perhaps if the MSM spent every evening pounding about the evils of jaywalking as a disrespect for law.
“Obviously, no rational electorate would do something like that. Or would they?”
Some years ago I had a sit-in part as a judge in a reenactment of an 18th Century colonial trial in Williamsburg. It was based on a real, recorded case. The bottom line was that a housemaid was sentenced to hang, for the theft of a single silver spoon from he employer.
Admittedly a silver spoon had far higher value then than it would today, and we might assume there was a logic that, since the odds of detecting and/or apprehending a criminal were exceedingly small in those days, that punishments needed to be harsher to provide deterrence.
But still, it was a spoon. And as I’ve just demonstrated, a logic could be developed for why it was necessary to kill someone for stealing a spoon. So no, imagining a logic for a death penalty for jaywalking does not seem like a great stretch, in review of relatively recent human history. Consider that with some things, like traffic laws, we already punish people for doing things that might result in harm (e.g., speeding) that in and of themselves are not harmful. And of course there are victimless crimes like firearms possession. We don’t seem to have much of a lock on rationality, or even proportionality.
As late as 1810, England is hanging children for theft of a single silver spoon. But if you have a society that is this far gone as to felonize jaywalking as an excuse for disarming people, you are well past the point where you can live there.