Another Second Amendment Victory

This time in North Carolina court:

The trial court concluded that, when Heller said that bans on felon possession of guns were “presumptively valid,” this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston’s conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn’t have occasion to issue any specific holding on that point.

I agree that not all felony convictions should be disabling, especially when you have lawmakers that want to do things like mislabeling syrup to be a felony. It’s also interesting that the Court noted:

There are additional and substitute procedural safeguards which could go far towards preventing the erroneous civil deprivation, or continued civil deprivation, of a citizen’s rights under the Second Amendment. For example, a felon’s potential subjection to the civil disability could easily be dealt with in felony sentencing by findings of fact and rulings on the civil deprivation of the right after giving the felon an opportunity to be heard on the issue. An expansion of the persons allowed to ask for review, and a provision allowing such review at a meaningful time on the issue of whether the person poses a continuing threat to public safety, can satisfy a procedural due process requirement for a meaningful post-disqualification review. The fiscal and administrative burdens that these procedures would entail would not be great if the issue of future dangerousness and consequent civil deprivation of a fundamental liberty were dealt with in the sentencing phase of a trial or plea. The burden of an expanded procedure for review of a felon’s continued dangerousness may only be excessive if all felons continue to be deprived of firearms rights by conviction alone. If, however, that deprivation is limited to those who are found to pose a continuing danger in the sentencing phase after having been given an opportunity to be heard on the issue, then the additional burden of allowing periodic review of the continuing validity of that determination should not be unduly burdensome for a government that seeks to preserve the fundamental rights of its citizens.

I’m glad to see this, because I have always believed a blanket ban on felons is an improper means of handling the issue, and that a prohibition on firearms possession should be something placed on a person convicted during sentencing. Of course, legislatures would be free to require this punishment for certain crimes, but not necessarily all crimes. It’s hard to see how public safety is served by a blanket ban that also covers non-violent felonies.

7 thoughts on “Another Second Amendment Victory”

  1. I agree, especially if the felony is a non-violent one (embezzlement, etc.) Even a felon has the right to self-defense. The issue of denying a felon the right to keep and bear arms should depend upon the level of likelihood of violence, not the fact of a felony.

  2. Hear, Hear!
    [libertarian working in law enforcement disclaimer]
    Nobody can tell me that Martha Stewart is such a threat to the general public that she should be denied her second amendment rights.
    I’ll go further and ask why we deny anyone outside of prison walls any civil rights? Wouldn’t it be simpler and cleaner to have only two classes of citizens? Free and clear or incarcerated.
    If an individual is so dangerous that they can’t be trusted with a gun – why should we release them back into society where they have millions of alternative means to cause harm should they choose to?

  3. The way I look at is: what other constitutional rights are lost when you’re convicted of a felony?

    Once you’re out of custody, you have the full spectrum of First Amendment rights, and I would assume Third Amendment rights as well. I think your Fourth Amendment rights are somewhat limited if you’re on parole or probation, but not if you’re released free and clear. Generally, the Fifth, Sixth, and Eighth Amendments are fully applicable.

    The only other thing I can think of is the right to vote, and frankly, I’m not clear on the constitutional justification for restricting that one, either.

  4. One could argue that white-collar crimes aren’t disabling, federally (18 USC 921(a)(20)(A)), but the government tends not to pay much attention to that part of the law.

    It would be better to expand it to preclude any non-violent felony from being disabling, but that ain’t ever gonna happen with this bunch.

    1. Well, when 12 impartial jurors say the government failed to prove their case beyond a reasonable doubt in one case, and in the other the accused was found guilty by a different 12 impartial jurors, that’s the system at work, and properly so.

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