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The Second Amendment and Felons:

A rare (and tentative) partial dissent from the nearly unanimous judicial view that the Second Amendment does not at all protect gun possession by felons, in U.S. v. Abner, 2009 WL 103172 (M.D. Ala. Jan. 14) (Myron H. Thompson, J.):

Upon consideration of the report and recommendation of the United States Magistrate Judge (doc. no. 31) and the objections filed by defendant Theophilus Quinton Abner (doc. no. 32), and after an independent and de novo review of the record, it is ORDERED as follows:

(1) Defendant Theophilus Quinton Abner's objections (doc. no. 32) are overruled.

(2) The recommendation of the United States Magistrate Judge (doc. no. 31) is adopted as to its result.

* * *

The court adds the following comments:

Abner argues that 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by those convicted of felonies, is unconstitutional as applied to him. Abner relies on the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), arguing that such significant and permanent restrictions on his right to possess a firearm in his home, particularly given the importance of defending himself, his property, and his family, cannot survive the scrutiny that opinion mandates for statutes regulating the possession of firearms in the home. Abner, however, has a serious history of violent crime of the highest magnitude, including state convictions for kidnaping and attempted murder. Even though § 922(g)(1) has a strikingly large scope -- a scope that might be arguably called into question by a fair reading of Heller's rationale -- the court does not find, under the particular circumstances presented in this case, a constitutional violation as applied....

[The magistrate judge had concluded, in relevant part: -EV] ... Heller expressly permits the possession of firearms in the home by persons not “disqualified” from the exercise of Second Amendment rights. Indeed, the United States Supreme Court expressly circumscribes its Heller decision to avoid casting doubt on the provisions of § 922(g). Abner asks this Court to regard those statements as mere dicta since those specific provisions were not before the Heller court. While the Court agrees a § 922(g) challenge was not the subject of the Heller decision, the Court rejects Abner's arguments that the statements are essentially irrelevant. On its face, “Heller did not disturb or implicate the constitutionality of § 922(g) and was not intended to open the door to a raft of Second Amendment challenges to § 922(g) convictions.” Indeed, every case found by this Court involving a post-Heller challenge to § 922(g) likewise concludes Heller did not invalidate § 922(g). As there is no guidance post-Heller from the Eleventh Circuit, this Court will join the other courts in its rejection of a § 922(g) challenge under Heller. Instead, the Court will take Heller at its word that it did not cast doubt on the validity of prohibitions like those found in § 922(g).

J. Aldridge:
If a felon can be “disqualified” from the exercise of his so-called Second Amendment rights, can he also be disqualified from other rights?
1.20.2009 1:10pm
Bored Lawyer:
IMVHO, this is a bad test case for this sort of argument. The defendant here "has a serious history of violent crime of the highest magnitude, including state convictions for kidnaping and attempted murder." The creates a compelling government interest in restricting his access to firearms.

A better case would be someone convicted of a financial felony, say stock fraud or embezzlement, but who never committed a violent act in his life. The government's interest in such a case in denying the felon his right to firearms under the Second Amendment is far from compelling.
1.20.2009 1:27pm
Sebastian (mail) (www):
I think this is pretty sensible. Courts have ruled that there are certain rights that conviction can't remove, such as access to the courts. There has to be limits to the power of the state to remove Second Amendment rights, otherwise what is to prevent a state from arguing that, say, careless driving shows a severe lack of judgment, such that any person convicted of such is too irresponsible to own a firearm? I think there should have to be some element of violence and gravity to the offense before second amendment rights can be called into question. I'm not sure how much it serves a public good to take guns away from tax evaders.
1.20.2009 1:31pm
My Middle Name Is Ralph:

I think there should have to be some element of violence and gravity to the offense before second amendment rights can be called into question.


IIRC, the statute applies only to felonies, so there already is an element of gravity to the offense. Of course, your point about violence remains.
1.20.2009 1:39pm
My Middle Name Is Ralph:

If a felon can be “disqualified” from the exercise of his so-called Second Amendment rights, can he also be disqualified from other rights?


The right to vote comes to mind.
1.20.2009 1:40pm
Leland (mail):
I was thinking about this scenario in relation to the Ramos and Campean commutation. There was a "senior White House advisor" that apparently made a point that the two are still convicted felons. So here you have two previous border agents (or to be more broad law enforcement officers), convicted of essentially a gun crime. There's a better chance, than the average citizen, that someone might put their life at risk in an attempt at vengence.

So two questions:
Can they be denied the right to keep and bear arms?
Second, if they are denied, can their spouses keep and bear arms in the same home?
1.20.2009 1:45pm
Four Point Stance:
"Theophilus Quinton Abner"

Sounds like a Faulkner character
1.20.2009 1:46pm
Jon Roland (mail) (www):
There is a fundamental violation of the due process rights of a person when any of his rights are deemed disabled without the disablement of those rights having been specifically sought in a petition to disable, and the need to disable proved beyond a reasonable doubt, with a right to a jury verdict on that issue. In this as in similar cases, the defendant was convicted of a crime, but the only right for which disablement was sought was the right not to be imprisoned. That might include possession of firearms while imprisoned, but it does not. logically, include possession after penal custody has ceased.

If the government wants to disable the right of a person to keep and bear arms (or any other right, such as not to be impeded from voting), then let them take a petition to court explicitly seeking the disablement of that right, and prove that if not disabled, there would be a clear and present danger to the subject or to others. If, on the other hand, it is to be considered part of the penalty allowed by the conviction, then let it be explicitly argued in the sentencing hearing and stated as such in the sentencing order.

I discuss these issues in my 2002 law review article, "Public Safety or Bills of Attainder?"
1.20.2009 1:53pm
mark birch (mail):
I'd say that as much as this petitioners circumstances are violent enough to fail an objective test, it still isn't a "bad test case" as it opens the window for a non violent felon to bring forth a petition.
1.20.2009 2:24pm
LarryA (mail) (www):
A better case would be someone convicted of a financial felony, say stock fraud or embezzlement, but who never committed a violent act in his life. The government's interest in such a case in denying the felon his right to firearms under the Second Amendment is far from compelling.
Or someone who boosted a car when he was 17, but has led an exemplary life in the 50 years since then.

Also, you are ineligible to possess a firearm if you have ever been convicted of a misdemeanor involving domestic violence, even if your conviction was prior to the law passing. And you may not possess a firearm if you have renounced U.S. citizenship, or if you are subjected to a protective or restraining order by an intimate person.

One of the Brady Center’s proposals is to exclude you if you’re on the TSA watch list.
1.20.2009 2:35pm
Dave R (mail):

IMVHO, this is a bad test case for this sort of argument. The defendant here "has a serious history of violent crime of the highest magnitude, including state convictions for kidnaping and attempted murder." The creates a compelling government interest in restricting his access to firearms.

A better case would be someone convicted of a financial felony, say stock fraud or embezzlement, but who never committed a violent act in his life. The government's interest in such a case in denying the felon his right to firearms under the Second Amendment is far from compelling.


Bored Lawyer:
There's no evidence this was a test case in the sense of being sponsored by anyone on the gun rights side. This guy saw his chance and brought his suit.

One of the handicaps gun rights advocates have worked under is that the great majority of second amendment suits have been brought by criminal defendants or incarcerated prisoners. (What have they got to lose?) So the courts have gotten used to slapping them down. The important thing to realize is that those suits aren't going away anytime soon, and certainly not after victories like Heller. "Bad test case" or not, we're stuck with them.

I've come to believe this is a strong argument for Heller-like strategic challenges with sympathetic plaintiffs, as you suggest. NRA leadership initially tried to spike what became Heller because they feared a loss, and only really got behind it when it got accepted by the Supreme Court. Obviously Gura, et al turned out to be correct that time. But equally importantly, if somebody hadn't been pushing a test case, an unsympathetic plaintiff might someday have succeeded in getting their own case before the Supreme Court instead of Heller. And Heller was close enough as it was.
1.20.2009 2:42pm
D Palmer (mail):
Didn't Heller specifically say that it did not prohibit reasonable restrictions on gun ownership?

I don't recall the exact wording but I recall that the court left open the door to some regulation.

This case strikes me as an obvious one in which this man's right to own a firearm should be forfeit.
1.20.2009 5:09pm
Jay:
Dave R--
In fact, it was even less of a test case that than--the government "brought his suit" for him when it indicted him for being a felon in possession!
1.20.2009 6:33pm
lawyer (mail):
Question for those of you working to increase Second Amendment scrutiny on gun restrictions imposed against those previously convicted of non-violent felonies.

Do you also believe that States should be unable to restrict voting rights of ex-felons once they have completed their sentences? Or should felon disenfranchisement be unconstitutional except against those whose crimes involved voter fraud? The biggest stumbling block to your current arguments will be the felon disenfranchisement precedent under Ramirez.
1.20.2009 7:24pm
Rhymes With Right (mail) (www):
The problem with your argument, lawyer, is that the permissibility of restrictions upon voting rights for those convicted of a crime is explicitly allowed for in the Fourteenth Amendment. The same cannot be said for the right to keep and bear arms under the Second Amendment.
1.20.2009 11:16pm
zippypinhead:
I've come to believe this is a strong argument for Heller-like strategic challenges with sympathetic plaintiffs, as you suggest.
Obviously, a sympathetic case for a challenge would be a white collar crime for violation of a public welfare regulatory scheme, rather than a malum in se crime (especially a crime of violence). Charges relating to securities violations or political investigations (e.g., Martha Stewart's and Scooter Libby's false statements convictions) immediately come to mind, as do environmental crimes, etc.

But the very best vehicle for the first such successful challenge, IMHO, would be a multi-count conviction for an antitrust conspiracy that includes ancillary felonies like wire fraud (e.g., for submitting false bids by wire), false statements (e.g., for submitting false certificates of independent price determination to a Federal procurement officer), tax violations (e.g., for failure to report various ill-gotten payments), etc. Why? Because the underlying antitrust conviction, although a felony, is the one type of crime that is expressly exempted from the §922(g)(1) felon-in-possession law, by virtue of the definition at §921((a)(20)(A). If the main charge doesn't revoke the defendant's Second Amendment rights, then additional felony counts springing from the same course of conduct also should not.

Once the courts explicitly recognize the general principle that §922(g)(1) doesn't always trump Second Amendment rights, then additional cases can expand the doctrine into other [preferably non-violent] felonies, and even other §922(g) categories that in no way implicate public safety.
1.21.2009 11:46am
hattio1:
Lawyer asks;


Do you also believe that States should be unable to restrict voting rights of ex-felons once they have completed their sentences? Or should felon disenfranchisement be unconstitutional except against those whose crimes involved voter fraud? The biggest stumbling block to your current arguments will be the felon disenfranchisement precedent under Ramirez.



I'll go further than that. I don't see any reason to restrict any citizen's right to vote. I don't see why currently incarcerated felons are not allowed to vote. BTW, are you ever really an "ex-felon" unless you've been pardoned? I've always heard felon to mean someone who was once convicted and ex-con to mean someone who has already done their time. Which, when you think about it, is exactly opposite of what the terminology should be. I mean, you were still convicted after you've done your time. I'm not sure you're still a felon.
1.21.2009 2:54pm
Jon Roland (mail) (www):
hattio1:
I don't see any reason to restrict any citizen's right to vote. I don't see why currently incarcerated felons are not allowed to vote.

The usual argument is that persons in penal custody are not in a position to vote free of undue influence by their custodians.

Voting can be disabled by statute on grounds not constitutionally protected, as it is a privilege, deriving from government, not a right deriving from nature, society, or state. But while the 14th Amendment may allow it for those convicted of a crime, that does not mean that there need not be due notice and a fair hearing on the issue of whether that privilege should be disabled, distinctly from the question of disablement of his right not to be imprisoned. Just because a statute allows for a penalty or requires that penalty, it doesn't mean the penalty need not be made explicit in a sentencing order.
1.21.2009 6:10pm

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