Due Process

The Editorial Board of the Philadelphia Inquirer would presumably be against denying suspected terrorists of their fourth amendment rights, fifth amendment rights and sixth amendment rights, without due process of law. But they are absolutely fine with, and even advocate, denying American Citizens their Second Amendment right without due process.

28 thoughts on “Due Process”

  1. We do the same thing to ex-cons. In most States they are denied both their 2nd and 15th Amendment rights, although the 2nd Amendment violation is, I believe, a Federal law.

    And yes, I understand the argument that their rights are forfeit once they commit the felony, but that argument loses steam once they’ve “paid their debt to society.”. They get their 5th Amendment right (liberty) restored, so why not their 2nd and 15th? If they are still considered too dangerous to society to have a gun, why then were they released (since they are quite capable of getting one illegally)?

    Restore all their rights or leave them in prison. Anything else is hypocrisy.

  2. The thing is, it’s up to society to decide what that debt is. Considering, historically, the sentence for being convicted of a felony was death, I think it’s fine to prohibit them from possessing arms for the rest of their life.

    A lot of things today are felonies that shouldn’t be, granted, but that’s a different problem.

  3. “A lot of things today are felonies that shouldn’t be, granted, but that’s a different problem a point against which I currently don’t know how to defend my position; however, rather than just come right out and admit that like any minimally responsible and adult person should, I’m instead going to post something which, while tautologically true, is also argumentatively infantile and irrelevant, in a pathetic attempt to trick people into not picking it up and beating me over the head with it, virtually speaking.”


  4. I tend to agree with Arnie on this. Do you think that any court would uphold saying that an ex-con’s home could be searched at any time, for the rest of his life, without a warrant or probable cause? Or that we could quarter troops in his home at his expense? How about having to submit all writing to a judge before dissemination?

    If these rights (among others) are sacred then why is the right to self-defense not?

    Arnie is right — if they are still considered too dangerous to society to have a gun, they should be kept in jail until it is safe for society to allow them to go about armed.

  5. No, I think I am capable of defending my position on that quite well.

    How do you determine that it’s unconstitutional to prohibit a convicted felon of the right to bear arms? You just want it to be. There’s no legal basis for determining that. Sentences for crimes are typically a matter decided by legislative act. What’s to prevent a legislature from declaring people convicted of certain crimes may not exercise certain rights?

  6. “We do the same thing to ex-cons.”

    Not really. Ex-cons have gone through a trial and been convicted. They’ve had the opportunity for appealing the conviction. There are criteria and requirements for having one’s rights restored.

    The article Sebastian linked to backs a proposal (by our good friend Lautenberg) to deprive people of Constitutional Rights without any due process – or any process at all really. The criteria for ending up on a “watch list” seems to be simply that someone at the CIA/FBI/NSA/TLA thinks you should be. There is no trial, no appeal, and no known way to get taken off the list. There’s not even any guarantee that it’s you that’s on the list – it could just be someone with the same name. You can’t even look to see if your name is on the list until you run into trouble because of it.

    (For the record, I do agree with Arnie and Hank about one thing – if you can’t be trusted to not go shooting people if you get hold of a gun, you shouldn’t be out of jail and unsupervised in the first place. If you’re out of jail and off probation, you’re expected to be a citizen again, and you should have all the rights and responsibilities of citizenship. If we’re going to deprive someone of a fundamental right for the rest of their life, we should just go ahead and execute them.)

  7. I should make clear my argument here is based entirely on what’s constitutional, not what amounts to sound public policy. I think there’s much to be desired in our current policy of denying firearms to non-violent felons and misdemeanants.

  8. No, I think I am capable of defending my position on that quite well.

    And yet, despite having been called out on that, you’re still not doing it. Imagine that! What a shocker!

    So! If you do think so, then what exactly was the point of saying, “but that’s a different problem”? What were you trying to accomplish with that statement? What was your intended goal?

    And why do you think Gerald Amirault and people like him should be denied the right to own and carry a firearm, as you appear to do?

  9. Can we have a rational discussion about this without the righteous indignation?

    It’s a separate issue because if you accept it’s constitutional to deny people constitutional rights through due process then it’s conceivable its within the state’s power.

    Whether, for instance, importing lobsters in the wrong bag ought to be a felony is a separate matter from what punishment is constitutional. The problem in that case is that importation of lobsters in the wrong bag is even a felony.

    Yet another, separate matter is whether it amounts to sound public policy. I would argue in the case of Mr. Amirault that it does not. But that’s a separate issue from constitutionality.

    I think you can make a case that the current felon-in-possession regime is unconstitutional. But that’s different than the public policy discussions.

  10. Can we have a rational discussion about this without the righteous indignation?

    Not until you start discussing it rationally, no. Oh, and there’s no righteous indignation involved here on my end ITFP — just the snarcastic mockery you so very much deserve, resulting from the exhaustion of my patience with your continuing evasions.

    I’m more than fed up now with the hypocrisy of your whole Me Heap Big Professional PR Expert routine on Open Carry. Your latest little dig of “advice” against it, yet still once more again without addressing my point about the relative importance and priorities of its preemptive defense enhancement versus gun owner public relations, was one more than my standing limit. For such a professional, you’re remarkably willing to repeatedly be dismissively rude to someone who shows more activist promise than most.

    It’s a separate issue because if you accept it’s constitutional to deny people constitutional rights through due process then it’s conceivable its within the state’s power.

    And if I were arguing that it wasn’t a separate issue, that might be relevant. However, since I’m not, it isn’t.

    What I am arguing is that your insupportable attempt to exclude arguments questioning the deprival of 2nd Amendment rights due to felony conviction simply because “that’s a different problem” is freaking bullcrap.

    And all you’re doing is repeating, like some kind of parrot, “but that’s a separate issue/matter/problem/matter/issue”. Yeah, we know that already, thanks ever so much!

    What we don’t know is why exactly that should be any kind of reason whatsoever for us to refrain from arguing that, say, the insufficient limitations on the State’s power to legislate felonies are more than sufficient reason to deny the State the power to deprive Citizens of their 2nd Amendment rights due to felony convictions.

    And we don’t know why that should be because you’re not stepping up to explain it. You’re just burbling “Different problem! Separate issue!” at us over and over again.

    Well, hey; that’s not good enough. Just because it’s a separate issue doesn’t mean it isn’t relevant, let alone takes precedence of validity and importance.

    So again, what exactly was the point of saying, “but that’s a different problem”, if not the above? What were you trying to accomplish with that statement? What was your intended goal?

    And why do you think Gerald Amirault and people like him should be denied the right to own and carry a firearm, as you appear to do?

  11. There’s a difference between ill-advised and unconstitutional. After due process, the government may deprive anyone of life, liberty, or property. In the case of most felons, after due process of law they are forevermore deprived of the liberty of firearms posession, more or less without . This is a Bad Thing. But it’s constitutional. Don’t like it? Vote the bums out and put in your own bums.

    On the other hand, there is no due process to be put on the watch list – it is originally designed as an intelligence-gathering resource that has been badly mispurposed. No judge is involved in being placed on the list and there is no good way to be removed. Not something that can be used to deny rights. Get denied the ability to posess a firearm; sue the pants off of anything you can reach related to the denial.

  12. There’s a difference between ill-advised and unconstitutional.

    That’s what I mean when I say they are separate issues. However, there are probably grounds under which you could argue that denying the right-to-bear arms to someone convicted of, say, tax evasion, isn’t narrowly tailored enough to serve the government’s purpose. But there’s more grounds that felons can have their gun rights removed, including the dicta in Heller that says as much.

  13. No, actually, it isn’t Constitutional, because the 2nd Amendment places strict and severe limits on the State’s power to deny Citizens access to and possession of weapons through the application of force or the threat of force. Breaking the law neither voids the basic Citizen-State contract nor specially empowers the State to exceed those strict and severe limits.

    And the 5th Amendment doesn’t allow it either without the demonstration of unequivocable precedence over the 2nd Amendment.

    Considering, historically, the sentence for being convicted of a felony was death, I think it’s fine to prohibit them from possessing arms for the rest of their life.

    Considering, historically, how the abuse of felony legislation was far greater in the past, your “thinking” is a steaming pantsload of thoughtless rationalizing crap.

    As shown by how one could substitute “amputate their hands and feet” or “indenture them for 40 years” for “prohibit them from possessing arms for the rest of their life” without changing the basic “reasoning” involved. ‘Cause, yeah, worse things done in the past somehow, magically! justify doing bad things in the present.

    Never mind the actual process of how that’s supposed to work, though; it sounds good enough so long as you don’t stop to consider it, and that’s all you really need, right?

    I’m only this upset because you’ve disappointed me so.

  14. The argument that the 2A prevents the government from removing the liberty of firearms posession is novel; I’ll grant that. Incorrect as of the holdings of Heller (not casting doubts on long-standing restrictions on ownership such as by felons), but novel. Like it or not, the constitution is applied through the lens of Supreme Court decisions – and as of right now bans of posession by felons are not unconstitutional.

    The over-felonization of everything is a completely separate issue – it affects WAY more than firearms ownership. The corrrect amendment against that is VIII, not II, however.

  15. Wow! First, let me apologize for opening such a bucket of worms! It was not my intent to turn pro-freedom allies against each other. Gentlemen, let us remember that we are all on the same side and the real adversaries are those who want to limit or destroy our liberty from government tyranny!

    That said, I must admit I have learned a great deal about constitutionality and due process from your vitriol, and for that I am grateful to all commenters on both sides.

    Acksiom, if I may humbly suggest: civil discourse does have its benefits – honey catches more flies, etc.

    Sebastian, I think I understand your point. If I may attempt to restate it thusly: that once one is convicted of a felony (i.e., due process), the Constitution allows the State (and Feds) to assess any penalty that does not violate the 8th Amendment. Now, whether that penalty is wise or fair, as opposed to cruel and unusual, is a matter of policy/legislation, not constituionality. Therefore, although most of us seem to think lifetime prohibition of armed self-defense is unfair or nonsensical, our remedy is not through constitutional adjudication, but through legislation via the ballot box. Not too dissimilar from requiring lifetime registration of sex offenders, clearly an infringement of their privacy rights, but constitutional because they forfeit their right to privacy when they were convicted of violating the right to privacy of their victim. Makes sense.

    Thank you, Sebastian, and all of you commenters. I learned something today – that makes it a good day!


  16. If I may add, I complained in the 1st comment that all rights should be restored once they “paid their debt to society.”. It is now my understanding that the debt would include a lifetime prohibition on personal, armed self-defense. So in effect the debt is never fully paid. I don’t like that, but, like life in prison and life-long sex-offender registration, it is not cruel and unusual, and therefore not unconstitutional. Redress must come through lobbying Congress for a change in law. I can see your argument, Sebastian.


  17. You are a true Gentleman, Arnie. I should be clear that I think current broad prohibitions on arms for those convicted of crimes are unjust, and I think some of them may (and should) be unconstitutional. I also think there’s something to be said that banning them the way the government has chosen to amounts to ex-post-facto for those who were already convicted, and served their sentence. But someone, who, say, robs a convenience store, or commits aggravated assault on another, I think can have their rights removed… but only after due process.

  18. I agree with what’s been said here about the difference between unconstitutional laws and stupid laws and have tried to make similar points before (here and elsewhere).

    I’m still troubled that many of us still are encumbered by this view of the “exceptionalism” of the 2nd amendment.

    We easily accept forfeiture of 2nd amendment rights for those who (theoretically) have paid their “debt to society” in a way that we would never accept for other amendments.

    Do we think that we would accept forfeiture of 4th amendment rights and support warrantless searches an ex-con’s property?

    Do we think that we would accept forfeiture of 1st amendment rights and support restrictions on ex-con’s speech?

    Do we think that we would accept forfeiture of 3rd amendment rights and support quartering troops in his home at his expense?

    Do we think that we would accept forfeiture of 5th amendment rights and support incarceration of ex-con’s without due process?

    How about 6th Amendment rights to trial by jury, confrontation of accusers, speedy trial, public trial, right to counsel, etc? What about 8th amendment prohibition against excessive bail and cruel and unusual punishment.

    We give in to the enemies of the right of self-defense by tacitly admitting to them that somehow 2nd amendment protections are “different” and “more dangerous” than other civil liberties.

  19. Well, to a large degree it was Heller that put us here. But to be honest, we’re probably better off with that language in there for the very important reason that it keeps criminals, who don’t make sympathetic defendants for the purposes of securing a broad Second Amendment right, from pursuing Second Amendment claims in the federal courts.

    For a serious treatment of the issue, see Eugene Volokh’s “IMPLEMENTING THE RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE: AN ANALYTICAL FRAMEWORK AND A RESEARCH AGENDA” starting on page 1493. You can find the PDF here. I think probably the most compelling is this:

    “[Non-]Peaceable Citizens.” The more practically important question concerns extensions of the ban from felons to violent misdemeanants228 and to nonviolent misdemeanants.229 Some historical references say that the right to keep and bear arms encompassed only “peaceable citizens” or “virtuous citizens,”230 and some recent scholarship and recent government arguments suggest that this justifies restrictions that go beyond felons and at least to violent misdemeanants.231 The question is whether this was indeed a historically understood limitation.

    Of which there is at least some historical evidence for. But I think the felon-in-possession laws are less than ideal, but Heller pretty much left them. Tactically that was probably beneficial over the long run, but that doesn’t mean it’s going to make a whole lot of sense from a logical “rights” framework point of view.

  20. An ex-con’s rights can be quite severly restricted “legally”. Particularly if they are out on parole. Many juristictions have a blanket ban on them voting (a much worse violation of their rights IMHO – I have no problem with a theoretical sentence for a specific violent criminal includes X years in the clink, and another Y years with limited firearms rights, but the removal of the right to vote after being discharged from prison I don’t care for.)

    I want to be clear – I don’t support the blanket prohibition on most felons posessing/owning firearms. It’s another example of the view that firearms are themselves uniquely dangerous and should be forbidden except where explicitly permitted. I would welcome a consitutional interpretation that considered the blanket removal of that right as an infringement. But that’s *not* the interpretation we have right now.

  21. Ian,
    Voting is not a constitutional right.

    Does anyone think that if, for example, a state passed a law stating that it was not required to provide ex-felons with speedy trials, that that law would not be immediately struck down by the courts as unconsitutional?

    Fill in your own example of constitutional rights which no court would ever condone restricting for those who (theoretically) have paid their “debt to society.” Yet somehow the 2nd amendment is “different” and “more dangerous” than other civil liberties.

    We should support restoration of ex-felons constitutional rights — all of them. If restoring a given person’s rights isn’t “safe” then keep them incarcerated. And consider the length of time required to rehabilitate said person to “safe” status when sentencing.

    I do understand that that’s *not* the interpretation we have right now.

  22. Hank:

    Not that I agree with it, but sex offenders often have their liberties restricted even post sentence, such has having to register as sex offenders, or often being restricted in the types of jobs they may hold.

    But you’re taking about how things should be theoretically, and I may even agree to a point, but that’s not how things are going to be. Heller close to door to felon gun rights, and to be honest, if it hand’t, we’d probably end up with a very narrow Second Amendment right otherwise. Maybe it’s not right, but that’s what we’re working with now.

  23. Fair enough – it looks like the protections for voting are limited.

    However, what I was getting at is that constitutional rights can be removed during the length of a convict’s sentence; and that the ban can be justified as all felonies carry a sentence of “restriction of liberty of firearms” for life. After what’s been done to the 4th amendment over the years; I can’t see any SCOTUS holding a different view. Also, note that paroled convicts; while no longer in prison, are under quite severe curtailment of their constitutional rights (free association, protection from search and seizure, right to trial in some cases). If the blanket ban on felons posessing (as it exists now) is struck down; it can be quickly reconstituted on different grounds. (as Sebastian mentioned, see the laws for sex offenders. If sex offender registries are struck down, then we’ll see. Until then, not so much)

    I *do* support the restoration of ex-felon’s rights; along with a narrowing of the scope of prohibiting which criminals should have their firearms rights restricted. It’s ridiculous that congress defunded the mechanisms for doing so federally; and I think that a mechanism to restore right son an individual basis should be constitutionally required (at the very least – preferably that each individual’s sentence include the periods by which their various liberties that are currently restricted by fiat become individually restricted and that “all for life” be unavailable under the 8th amendment as a sentence)

  24. OK- I’ve sort of been playing devil’s advocate, but I’m trying to make a couple of serious points.

    One – 2nd amendment rights are just as important as the others and we shouldn’t blindly advocate/accept restrictions on them.

    Second – laws don’t keep criminals from getting guns. Paroling a dangerous criminal while thinking “This guy is really dangerous, good thing the law doesn’t allow him to possess firearms!” is really stupid! Parole boards need to think about this. If the law said, as soon as you release this guy he can go legally buy a gun, they might think twice.about these things, but since they have this “fig leaf” that the criminals they release won’t ever have firearms.

    What I want is longer sentences for violent criminals. I know that I’m preaching to the choir, but I’m so frustrated reading about horrendous crimes committed by guys with dozens of arrest and convictions for previous terrible crimes. And this is also true with sex offenders — when ever a suspect is arrested in some horrific sex crime, the guy has a record of sex offenses as long as your arm.

    And I think that if 2nd amendment rights had to be restored that might lead to these longer sentences and less leniency with violent offenders.

  25. I’m not playing Devil’s Advocate, exactly. I’m just saying that as of the current environment; the prohibitions on felons are constitutional. Stupid, counterproductive, etc etc. And if you want to make the argument that they are unconstitutional, don’t use the 2A; use the 8A.

  26. Hank brought up a fascinating claim in #23: ” voting is not a constitutional right.”

    This is probably not the forum for this, but very quickly:

    Prior to the 15th Amendment, I believe Hank’s claim was true. I haven’t been able to find any evidence that our Founders considered voting as an unalienable right, but rather a privilege granted by States to whomever they qualified as “responsible” citizens (usually upstanding white, male land- or business-owners). Not until the 15th Amendment(post-Civil War) could I find it constitutionally labelled as a “right.”.

    Interestingly. It is also the 15th that protects the right of ex-felons to vote (“previous condition of servitude” – “servitude” was a euphemistic term applied both to slavery and to imprisonment for crime by the 13th Amendment). So in my layman’s opinion, the State-appointed privilege evolved into an unalienable right in 1868, and was expanded to youth, women, and the poor by later Amendments which also called it a right.

    Forgive the digression, but I have always wondered about this.


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