Violent Misdemeanants, the Right to Bear Arms, and the Right to Vote

Chief Judge Frank Easterbrook analogized the individual right to bear arms to the individual right to vote, and reasoned that, given that states may deny misdemeanants the right to vote, they should be equally able to deny them the right to bear arms.

I don’t think that analogy quite works. The right to vote, of course, is not expressly secured by the text of the Constitution; the relevant amendments only bar discrimination based on race, color, previous condition of servitude, sex, failure to pay a poll tax or other tax, or age (when 18 or above). But the Supreme Court has held that classifications in deciding who may vote must generally be narrowly tailored to a compelling state interest. This means that if the state chooses to make an office elective, it must ordinarily allow all adult resident citizens to vote (with a few exceptions not relevant here).

Why then may criminals be disqualified from voting? Because:

[T]the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.

Earlier, the Court explained the § 2 argument:

Unlike most claims under the Equal Protection Clause, for the decision of which we have only the language of the Clause itself as it is embodied in the Fourteenth Amendment, respondents’ claim implicates not merely the language of the Equal Protection Clause of § 1 of the Fourteenth Amendment, but also the provisions of the less familiar § 2 of the Amendment:
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” (Emphasis supplied.)

Petitioner contends that the italicized language of § 2 expressly exempts from the sanction of that section disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment. This argument seems to us a persuasive one ….

So if it weren’t for this specific provision, bans on voting by felons and bans on voting by misdemeanants (which I believe are rarer and narrower than the bans on voting by felons) would indeed be presumptively unconstitutional. There’s no similar provision as to the right to bear arms, so voting and having guns aren’t really constitutionally analogous. Limits on gun possession by felons and certain misdemeanants may still be constitutional; it’s just that the right-to-vote analogy doesn’t much advance that argument.