The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old May 7, 2011, 08:05 PM   #1
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Has anyone ever challenged non violent crime felonys being a bar to the 2A.

I am not a lawyer... However it seems apparent to me that the founding fathers probably did want most citizens even those who had been convicted of crime to be able to keep and bear arms once the punishment had been served.

I have a brother who has a felony for trying to cash a check on a closed checking account... Was it stupid yes.... Was he just barely 18 and inexperienced... yes... Was it a felony, yes.....

And yet I dont think that the founders of our nation would agree with this as a bar to owning a firearm.... So the question is has anyone ever challenged the government on this issue and if so when and what was the result? Is there any hope of it being challenged in the foreseeable future?
__________________
Molon Labe
BGutzman is offline  
Old May 7, 2011, 08:31 PM   #2
shootniron
Senior Member
 
Join Date: April 16, 2011
Posts: 1,147
This is not an answer to your question, but the owner of one of our local gun shops had a felony drug conviction in 1983 and served a brief sentence. He was unable to own firearms for years yet was able to file for removal of the felony and was successful. Now he owns about 200......not counting his sizable collection at home.
shootniron is offline  
Old May 7, 2011, 08:51 PM   #3
Wildalaska
Junior member
 
Join Date: November 25, 2002
Location: In my own little weird world in Anchorage, Alaska
Posts: 14,174
The founding fathers view of felony would have been based on english jurisprudence.

In 1776 uttering a bad check would have subjected you to death, even in america IIRC

WilditsblackstonetimeAlaska ™©2002-2011
Wildalaska is offline  
Old May 8, 2011, 09:31 AM   #4
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,305
Actually, there have been several cases, with varying degrees of merit. One of the notable ones is US v. Skoien, regarding domestic violence misdemeanors.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old May 8, 2011, 12:57 PM   #5
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,364
Tom, that was from 2009. Is there anything further on that case -- such as what happened when the case was reconsidered after being sent back?
Aguila Blanca is online now  
Old May 8, 2011, 01:56 PM   #6
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Thanks Tom... I just think the whole felony thing has become a way to prohibit people... a kind of gun control.... It almost seems like you have to have a constitutional definition of what a felony is..
__________________
Molon Labe
BGutzman is offline  
Old May 8, 2011, 03:48 PM   #7
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,305
Quote:
Tom, that was from 2009. Is there anything further on that case -- such as what happened when the case was reconsidered after being sent back?
In short, we lost.

Two other recent cases spring to mind, but both strike me as stinkers. US v. Williams involved a felon with a history of violence, and some pretty weak arguments. I believe US v. Chester might have legs, but again, the plaintiff isn't very sympathetic.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old May 8, 2011, 04:37 PM   #8
Spats McGee
Staff
 
Join Date: July 28, 2010
Location: Arkansas
Posts: 5,064
As a practical matter, we need a fairly sympathetic plaintiff who also has a felony record in order to mount a successful challenge. When you start putting all the necessary pieces in place to get one of those, that creature starts to look pretty scarce.

In order to get a sympathetic plaintiff with a felony record (or an ideal plaintiff for this challenge, at any rate), you've got to start with someone who catches a felony charge, and to whom gun rights are important. Then, for whatever reason, they have to either fail or refuse to plead it down to a misdemeanor, and have a conviction on the felony charge entered against them (either pleading it or losing at trial). Finally, they have to fail to have the felony expunged, or have it done under a statute that does not restore gun rights.

That seems like a whole lot of hurdles to have to clear to find an ideal plaintiff for that challenge.
Spats McGee is offline  
Old May 8, 2011, 04:55 PM   #9
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
IMHO we have a lot of crimes that are considered felonys that the actual crimes seemed very minor and physically harmed no one. What is a felony in one location is a misdomeaner in another location.

I understand that each states is entitled to its own laws but then when you start adding local laws you end up with a patch work with seemingly little uniformity.

I also think the felon bench mark has been extended as a kind of legal gun control but again with no set of constitutional standards there seems to be no limit to the reasons you can be charged with a felony and lose your right to bear a firearm.

I appreciate the information offered here but it sounds fairly bleak...
__________________
Molon Labe

Last edited by BGutzman; May 8, 2011 at 09:54 PM.
BGutzman is offline  
Old May 8, 2011, 05:52 PM   #10
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 6,364
Quote:
Originally Posted by deleted post
That being said: Legally he can get a waiver from the US Attorney General, He can petition his governor for a pardon, he can seek expungement, he can petition the State Attorney General for an expungement.

I doubt Eric Holder will give a waiver, but he can try.
The Feds can't do anything because for many years Congress has specifically NOT funded the expungement/restoration of rights program. Further, the Feds cannot in any case waive or expunge a state conviction. And, likewise, a state cannot pardon or expunge a Federal conviction.
Aguila Blanca is online now  
Old May 8, 2011, 06:25 PM   #11
Wildalaska
Junior member
 
Join Date: November 25, 2002
Location: In my own little weird world in Anchorage, Alaska
Posts: 14,174
Quote:
Originally Posted by deleted post
America is a police state, not quite as bad as Nazi-Germany, but far from free.

Well heck why are ya here then

Quote:
Originally Posted by deleted post
The 2nd Amendment granted the right to bear arms. Period. A felon has just as much right to protect himself as anyone else.

Guns should be unrestricted. No matter what the Nationalists think.

Not according to the Supreme Court. They rule, you dont. And let me know what a "Nationalist" is


WildahfondmemoriesAlaska ™©2002-2011
Wildalaska is offline  
Old May 8, 2011, 06:31 PM   #12
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,305
Quote:
Not according to the Supreme Court. They rule, you dont.
Precisely. We can rail about how we think things should be, or we can realize what they are.

Right now, the 2nd Amendment means what SCOTUS says it means. Apparently, the founders meant to protect a limited right to own a handgun in the home, subject to "reasonable regulation." That's what we have to improve, piece by piece.

Is that how it should be? No. But that's how it is.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old May 8, 2011, 08:50 PM   #13
pcb911
Member
 
Join Date: February 10, 2011
Location: North Georgia & Fl.
Posts: 44
From what I remember the felon thing comes from the Commerce Act that in itself is a gun control law from the 30's. It has been expanded several times to grab many more people that would not have been under it until the DOJ wanted to make more news. It is even used to justify the new health care bill.

In the 80's, there was a letter sent out by DOJ or ATF stating that white collar crime no matter the sentence, was not a reason to lose your gun rights. However, it was never followed up on.

In Georgia, there was a case where a convicted felon picked up a gun that belonged to his wife to defend himself from an attacker and was found not guilty by the state jury because he claimed self defense in his home. Jury nullification!
__________________
Assume nothing.
pcb911 is offline  
Old May 8, 2011, 09:30 PM   #14
Don H
Senior Member
 
Join Date: May 8, 2000
Location: SLC,Utah
Posts: 2,705
Quote:
Originally Posted by pcb911
In the 80's, there was a letter sent out by DOJ or ATF stating that white collar crime no matter the sentence, was not a reason to lose your gun rights. However, it was never followed up on.
This is probably what the letter was in reference to:
Quote:
18 USC 921(a)(20) The term "crime punishable by imprisonment for a term
exceeding one year" does not include -
(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business
practices, or
(B) any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years
or less.
Don H is offline  
Old May 8, 2011, 09:51 PM   #15
Double Naught Spy
Senior Member
 
Join Date: January 8, 2001
Location: Forestburg, Montague County, Texas
Posts: 10,423
Quote:
IMHO we have a lot of crimes that are considered felonys that the actual crimes seemed very minor and physically harmed no one.
And yet people will risk so many rights when they commit these felonies. What sort of idiot would do that? There really are some very real consequences for our actions, even if we don't like what they are.

The standard of physically harming no one is interesting, but I don't know that it is valid. People say that felony drug possessions are crimes that have caused no harm to anyone, and yet families are torn about by illegal drug problems. The trials and tribulations resulting from such problems may not physically harm a person, yet ruin lives.

Fraud and other such scams may do no physical harm, yet take from people their life savings. No physical harm was done, but lives ruined and quality of lives ruined.
__________________
"If you look through your scope and see your shoe, aim higher."
-- said to me by my 11 year old daughter before going out for hogs 8/13/2011
Double Naught Spy is offline  
Old May 8, 2011, 10:08 PM   #16
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Is a twelve dollar check a felony? I understand it was and I understand he did it..

Part of what I am getting at is there certainly would seem to be some constitutional limit to what kinds of crimes remove your right to bear arms...

I can see that its apparent the court hasnt ruled on this but I wanted to learn what has happened and many people have made a teriffic contribution to this thread.

I do not however believe that any petty crime that is declared to be a felony actually meets what the founders may have had in mind. I dont think theres any shortage of people who at one point or anther in life made a mistake and they lost all their rights to ever own a gun...

I understand expungement may be a option in some cases but lets face it in some places it could be a practical impossibility to get an expungement regardless of years of lawfulness.

I am considering doing the research and trying to write up an article to send to the NRA on this, I am kind of dumbfounded that this situation can persist. This forum contains much knowledge and experience and I really wanted to get a feeling for the whole situation.

It may take a year or two to do the work on this but I am at least considering it..
__________________
Molon Labe
BGutzman is offline  
Old May 8, 2011, 11:30 PM   #17
Double Naught Spy
Senior Member
 
Join Date: January 8, 2001
Location: Forestburg, Montague County, Texas
Posts: 10,423
Quote:
Is a twelve dollar check a felony? I understand it was and I understand he did it..

Part of what I am getting at is there certainly would seem to be some constitutional limit to what kinds of crimes remove your right to bear arms...
Sorry, but I have no idea what $12 check felony conviction that you are talking about in regard to circumstances. However, check fraud (regardless of the amount) is a felony in many states and writing a check on a closed account, knowingly doing so, would be a felony.

Constitutional limit? Hmmm. Well the Constitution sets up the process by which laws may be created and loss of rights is covered by the U.S. Code created under these Constitutional constraints.

The arbitrary criterion of violent v. non-violent crime is just as problematic as the current statutes in place.

Or maybe you are looking for a Constitutional Amendment? I would think that changing the statutes of the current code would be the first thing that needed to be changed as such amendments are nearly impossible to come by and there are a lot of topics other than restoration of rights after felony convictions that would seem to be higher up on the list for consideration of a change to the Constitution, whether we want to recognize that or not.

Quote:
I dont think theres any shortage of people who at one point or anther in life made a mistake and they lost all their rights to ever own a gun...
Yeah, but most didn't make just one. They may have only been convicted for just one, but they make many such "mistakes." The thing is, it is hard to call them mistakes when they know they are intentionally engaged in an illegal activity and often do it for the purpose of personal gain at the expense of another.

However, for those that do have such singular events with crimes of little harm, then there is indeed already a process in place for restoration of rights.
__________________
"If you look through your scope and see your shoe, aim higher."
-- said to me by my 11 year old daughter before going out for hogs 8/13/2011

Last edited by Double Naught Spy; May 8, 2011 at 11:43 PM.
Double Naught Spy is offline  
Old May 8, 2011, 11:48 PM   #18
Double Naught Spy
Senior Member
 
Join Date: January 8, 2001
Location: Forestburg, Montague County, Texas
Posts: 10,423
Quote:
Was he just barely 18 and inexperienced...yes
Why is it that when somebody gets punished as an adult when they are indeed an adult that we want to so readily forgive them for being young and inexperienced or stupid, but when it comes to granting rights, we think they must be mature and smart enough to handle them, such as handgun purchasing.

I am not sure how we can make the argument both ways.
__________________
"If you look through your scope and see your shoe, aim higher."
-- said to me by my 11 year old daughter before going out for hogs 8/13/2011
Double Naught Spy is offline  
Old May 9, 2011, 07:41 AM   #19
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Perhaps incorrectly I have always been under the presumption that rights took some "reasonable" level of crime in order to loose those rights under law and I always felt some rights you simply cannot lose.

Personal feelings about what the Constitution and the Bill of rights certainly doesnt override the courts ability to rule and legislatures ability to make certain laws.

What does seem certain that if on this subject or any other subject a constitutional amendment is ever to passed in the future it will almost certainly require many paragraphs of explanation or else we are subject to an endless flood of laws that may actually conflict with the intent of the amendment but since its not spelled out in the amendment we may have to wait decades or centuries for the SCOTUS to rule upon what a specific spelled out right means.

I think the burden has been placed on the people instead of the courts and I dont think thats what was intended, I think freedoms were meant to be preserved without a specific court ruling on a lot of stuff but somehow thats not whats happened.

I believe our country was founded on principles meant to ensure freedom reins and instead we have a situation where freedom endures.... The two are not the same..
__________________
Molon Labe

Last edited by BGutzman; May 9, 2011 at 10:55 AM.
BGutzman is offline  
Old May 9, 2011, 10:23 AM   #20
vranasaurus
Senior Member
 
Join Date: November 16, 2008
Posts: 1,175
How long ago did this occur?

What has this person done since then?

If it was really that minor, there has been at least 5-10 years since it happened, and they've led a productive life since why not apply for a pardon from the Governor?
vranasaurus is offline  
Old May 9, 2011, 10:54 AM   #21
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,315
Currently in the U.S., we have a real mish-mash of laws, as it regards firearms. There are many local and State laws to take into account. Then there are Federal laws.

Quote:
Originally Posted by Double Naught Spy View Post
However, for those that do have such singular events with crimes of little harm, then there is indeed already a process in place for restoration of rights.
This is where we run into real problems.

On the Federal level, we have a procedure to restore the gun-rights rights of Felons (18 U.S.C. § 925(c)). But even that process does not cover those prohibited persons who have been convicted under DVMC (Lautenberg). In addition, Congress has refused to fund this section of the Federal gun laws, so relief of disability is a theory only, not a practicality.

Then there are States that have indeterminate sentencing for all misdemeanors. Remembering that if any conviction can result in a sentence of more than a year, you are a prohibited person (18 U.S.C. § 922(d)(1)).

MD is such a State. Under MD Statutory law, any misdemeanor conviction can result in incarceration of up to 3 years, under strict guidelines - most first time offenses result in much less. But the feds have concluded that a MD misdemeanor conviction will result in your being a prohibited person for life. See Schrader v. Holder.

Federal Law allows for the removal of prohibited status, if you have had your rights restored at the State level, according to State law.

There's a catch to this. If the violation was domestic violence, regardless of any State law or State action, you will be a prohibited person for life (see, generally, 18 U.S.C. § 925(a)). See Enos v Holder.

So the supposed remedies are not altogether as clear and straight forward as some make it out.
Al Norris is offline  
Old May 9, 2011, 10:55 AM   #22
Double Naught Spy
Senior Member
 
Join Date: January 8, 2001
Location: Forestburg, Montague County, Texas
Posts: 10,423
Quote:
I believe our country was founded on principles meant to ensure freedom reins and instead we have a situation where freedom endures.
Yes, so long as you were an anglo adult male landowner, you were good to go. If you were female, not an adult, slave or former slave, etc., then the country was founded on principles that ensured freedom would not reign for you. We had to make some significant changes to the Constitution because what the Founding Fathers founded has some hugely biasing constraints.

Look, it sounds like you want to help your brother, but I am not sure that you have recognized the parameters of the problem. Outside of the Constitution, Founding Father arguments are going to be tough to get into changed law since the laws of the country are more than 200 years beyond their initial steerage and cherrypicking intent only carries so much weight.

Quote:
Perhaps incorrectly I have always been under the presumption that rights took some "reasonable" level of crime in order to loose those rights under law and I always felt some rights you simply cannot lose.
It isn't there isn't a reasonable level of crime that defines when rights are lost. There is, and it has been in place for a while. You don't think it is reasonable, which is fine, so you need to change that which you don't think it is reasonable to a law that you think will be "reasonable."

As for your second belief that some rights should never be lost, good luck with that. I am not sure that closure of the prisons and jails is ever going to happen, but each person arrested and put into jail or who ends up in prison has a loss of rights. They are precious and people regularly piddle them away.
__________________
"If you look through your scope and see your shoe, aim higher."
-- said to me by my 11 year old daughter before going out for hogs 8/13/2011
Double Naught Spy is offline  
Old May 9, 2011, 02:47 PM   #23
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
I understand that the constitution was written 200 years ago. My intent is certainly to help my brother but the bigger picture is how many millions of people have only made one minor mistake in a lifetime that result in a permanent removal of the right to keep and bear arms. Is that truly the American way? Is that the way it should really be? I’m not claiming to have all the answers but I know what my answers to these questions are and I don’t pretend to speak for you or even everyone… I can see a reasonable argument that one minor violation in a lifetime does not need to necessitate paying 3 thousand dollars to 40 thousand dollars for the removal of an offense that in many cases is very minor.

For the sake of this forum you are right I am cherry picking the 2A but that’s because it is appropriate to this forum.

I’m not sure when I implied anything about closing jails and it seems you are somehow offended that you could have rights that I see is being unalienable regardless of conviction and I do believe we have some documents presented in the founding of our nation that make it clear that some rights were intended to be unalienable.

Further as pointed out by others the government has utterly failed to give a way to resolve some of this issue or they failed to fund it or however you want to put it. Should we not expect our government to fund a reasonable method to determine these issues and when it continually fails to resolve them then should we not have a method of redress?

How many millions of more people could be enjoying hunting and shooting and how many more lives could be saved if we had these issues resolved.

I don’t understand your hostility unless your part of the system that I am morally impeaching for its lack of observation of the tenants of our own system of government and the inherent responsibility to present a reasonable path to allow the return of rights to lawful peace abiding citizens.

I mean no offense, but I find the situation untenable even if eternally sustainable, it is IMHO bankrupt of the intent of natural law.
__________________
Molon Labe

Last edited by BGutzman; May 9, 2011 at 02:56 PM.
BGutzman is offline  
Old May 9, 2011, 10:49 PM   #24
Wildalaska
Junior member
 
Join Date: November 25, 2002
Location: In my own little weird world in Anchorage, Alaska
Posts: 14,174
Millions?

WildidontthinksoAlaska ™©2002-2011
Wildalaska is offline  
Old May 10, 2011, 06:07 AM   #25
BlueTrain
Senior Member
 
Join Date: September 26, 2005
Location: Northern Virginia
Posts: 5,825
Oh, you beat me to it. Millions, indeed?

Now, the funny thing here is that one often hears the argument that we don't need more gun control laws. Just enforce the ones we have. Yet we do and people complain. The basic problem is, apparently, people have the idea that any law they don't like is therefore unjust and you know how that goes. I assume all traffic laws are thought to be unjust based on my observation of how carefully they are obeyed. If you cannot trust a person with the small things, how can you trust them with the important things?

However, over the years we have expanded, I think, the meaning of the second admendment and probably some of the others (some seem to have become more restrictive). If that is what has happened, that is what you call a liberalization of the law. We're just a bunch of old liberals around here.
__________________
Shoot low, sheriff. They're riding Shetlands!
Underneath the starry flag, civilize 'em with a Krag,
and return us to our own beloved homes!
Buy War Bonds.
BlueTrain is offline  
Reply

Tags
felony , law

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 07:40 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.13858 seconds with 7 queries