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Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons:

The case is U.S. v. McCane, decided yesterday. The majority rejected the defendant's Second Amendment claim by simply saying that the Court "explicitly stated in Heller that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,'" and citing a recent Fifth Circuit opinion echoing this. But Judge Tymkovich wrote a concurring opinion, which said:

I join in Judge Murphy's cogent opinion, but write separately regarding certain issues raised by our Second Amendment holding ..., for two reasons....

My first point is that the felon dispossession dictum may lack the "longstanding" historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as "longstanding prohibitions on the possession of firearms by felons," is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.

This uncertain historical evidence is problematic in light of Heller's Second Amendment interpretation. Central to the Court's holding are a detailed textual analysis and a comprehensive review of the Second Amendment's meaning at the time of its adoption. After conducting this analysis and review, Heller concludes the right "to keep and bear arms" is a corollary to the individual right of self-defense. At the "core" of the Second Amendment right, the Court found, is self-defense in the home.

Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right.... For example, the broad scope of 18 U.S.C. § 922(g)(1) — which permanently disqualifies all felons from possessing firearms — would conflict with the "core" self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons. The validity of § 922(g)(1) was not at issue in Heller, so presumably the lower courts would be left to sort out this restriction — as well as other restrictions — and to wrestle with any complexities in applying Heller. But the issue was not really left to the lower courts.... Heller's felon dispossession dictum is particularly noteworthy considering the scope of the § 922(g)(1) ban. The statute prohibits firearm possession by any person convicted of a felony, irrespective of the nature of the felony, the length of time elapsed since the felony conviction, and the treatment of the felony by the state in which the felon resides. Every individual right has exceptions, of course, and the application of § 922(g) to a violent felon such as Mr. McCane would appear appropriate under any Second Amendment reading. After all, felons lose out on fundamental rights such as voting and serving on juries, and face discrimination that need only survive rational basis review. The question may be less clear, however, where the underlying felony is non-violent, such as financial fraud, perjury, or misleading federal investigators. But § 922(g)(1) encompasses these (and other) non-violent felons as well, permanently restricting their Second Amendment right to self-defense.

This brings me to my second point. The Court's summary treatment of felon dispossession in dictum forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope. Applying Heller's individual right holding to various regulations would be complicated, and it is of course possible (if not probable) that different courts would articulate different standards. Already a number of commentators have considered and proposed approaches to the existing gun laws and the proper level of constitutional scrutiny. But the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts. In this case, for example, we need not address the standard of review applicable to gun dispossession laws — strict scrutiny, intermediate, rational basis, or something else — or the examination of the governmental interests in light of the standard of review.

Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court's clear direction, this is perhaps how it should be. After all, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu." I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.

Note also that Judge Tymkovich's view is especially important in light of U.S. v. Engstrum, where a federal district court in Utah held that a defendant who is prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor has a Second Amendment right to present an affirmative defense "that he posed no prospective risk of violence." (I take it this must mean no prospective risk of violence beyond that posed by the average person.) The jury, under the trial court's approach, would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

The government has filed a mandamus petition, asking the Tenth Circuit to review this decision; Judge Tymkovich might be called upon to consider this petition, either if it comes to him as a panel member, or if a panel decision in the case leads to a call for en banc review.

Thanks to How Appealing for the pointer.

cboldt (mail):
I found the extent of power the 10th Circuit gives to SCOTUS dicta interesting, and troubling. This is also from Tymkovich's concurring opinion:
District of Columbia v. Heller instructs that it not be taken "to cast doubt on longstanding prohibitions on the possession of firearms by felons." 128 S. Ct. 2783, 2816–17 (2008). This instruction, as McCane points out, is dictum. But Supreme Court dicta binds us "almost as firmly as . . . the Court's outright holdings." Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)). This is particularly so where, as here, the dictum is recent and not enfeebled by later statements. See id.; see also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009) ("Although [Heller's] exceptions are arguably dicta, they are dicta of the strongest sort."). I therefore concur with the majority in rejecting McCane's Second Amendment challenge.

In short, says Tymkovich, even though the dicta is not supported by the citations or objective reality, even though the dicta is totally superfluous to the Heller decision, the dicta properly is used to control the outcome of this case.
7.29.2009 5:24pm
PatHMV (mail) (www):
As a general principle, I have trouble seeing how it could be constitutional for a state to prohibit every person convicted of a felony from ever again casting a vote, for the rest of their lives, but could not prohibit such persons from carrying guns. It seems to me that proper resolution of this issues hinges not so much on the particularities of the 2nd Amendment, but on a closer analysis of what rights the state may, and may not, take away as a result of being convicted of a crime, even after the term of incarceration and/or probation or parole has ended.
7.29.2009 5:28pm
Chicago:
I feel confident that the government can't prosecute a mother for having a child who turns out to be a criminal. But is this really because there's a right to bear felons?
7.29.2009 5:29pm
Steve:
I was particularly concerned by Scalia's dicta in Heller. Here's what he wrote:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.


This struck me as extraneous commentary inserted with a purely political motivation, which is to say, "before the liberals start shrieking that Scalia is saying felons are allowed to own firearms, I'm going to affirm that I'm doing no such thing!" But look, obviously Heller casts doubt on a wide range of gun restrictions (which I see as a good thing). It's not appropriate for Scalia, with a wave of the hand, to lay out a list of restrictions that are still OK according to him. Those cases will be brought somewhere down the road, and the courts will have to decide for themselves what impact Heller has on the analysis.

Frankly, even though the issue of felons owning handguns seems to be politically settled, it's not exactly easy to reconcile that policy with the belief that self-defense is a human right. Scalia shouldn't just go around dismissing the argument in order to preempt his critics.
7.29.2009 5:30pm
K. Dackson (mail):
Why would I want to bear felons?

I got a bad back.
7.29.2009 5:32pm
PatHMV (mail) (www):
cboldt... I don't think it's quite accurate to characterize the concurring judge as saying that the dicta "is not supported by the citations or objective reality." Specifically, he says: "To be sure, some sources would support the proposition." He goes on to say only that other sources (which he considers more modern and more likely authoritative) "cast doubt" on the Heller dicta. All I read him as saying is exactly what he says he's saying... that this is a harder question than it initially appears, and he thinks that the circuit courts should do the hard work of exploring the question more fully. That's a far cry from saying that the Supreme Court was ignorant of "objective reality."
7.29.2009 5:32pm
cboldt (mail):
18 USC 921(a)(20) does carve out or exempt certain felons from the effects of section 922.
(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.

So the assertion, "... 922(g)(1) ban. The statute prohibits firearm possession by any person convicted of a felony, irrespective of the nature of the felony," is FALSE, period.
7.29.2009 5:34pm
PatHMV (mail) (www):
Steve, all of our rights can be limited once we're convicted of a crime. You give up a variety of liberty and speech rights during your period of incarceration, probation, or parole. As I noted above, many states bar convicted felons from ever voting again, unless they obtain a pardon. Individuals on parole are subject to random and warantless searches.

Thus, it's not enough to simply determine that the inherent right of self-defense makes the right to carry a gun a fundamental human right. One must also analyze whether this right, as with other rights, can or should be restricted for convicted felons. I know some people believe that the 2nd Amendment is the most fundamental right. Me, I side with the Framers and hold that the First Amendment, freedom of speech and religion, is the most important. But the right to vote is way, way, way up at the top of the list as well. And yet those rights can and routinely are restricted for felons.
7.29.2009 5:37pm
Soronel Haetir (mail):
Pat,

I would counter with the idea that criminal activity may forfeit one's right to directly steer government, though even then the felon retains the right to be heard.

Voting is a positive right, granted by the state as part of the agreement that created the state. Self-defense, even against the government and its agents is not such a right, it may be channeled and constrained, but not surrendered.
7.29.2009 5:37pm
ShelbyC:

'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons'


What effect does dicta like that have? Aren't judges required to independently determine whether or not that's true? It seems most of them just cite that line and move on.
7.29.2009 5:39pm
wfjag:

For example, the broad scope of 18 U.S.C. § 922(g)(1) — which permanently disqualifies all felons from possessing firearms — would conflict with the "core" self-defense right embodied in the Second Amendment.

IMO, Judge Tymkovich protests too much. I don't see the conflict -- a felon still has a right of self-defense, just not the option of possessing a firearm to use as a means of self-defense.
7.29.2009 5:39pm
PatHMV (mail) (www):
cboldt, you just quoted Judge Tymkovich's summary of the statute, not the Supreme Court's. If anything, your last comment proves that he's the one out of touch with "objective reality," rather than the Supreme Court.
7.29.2009 5:39pm
Soronel Haetir (mail):
I would also be interested in the interplay between the narrowing of execution criteria and the disarmament trend. Perhaps when the criminals people feared setting loose were actually hung, the thought of other criminals being armed wasn't nearly so concerning.
7.29.2009 5:39pm
PatHMV (mail) (www):
As a matter of purely political consideration, I would urge that libertarians not become the party that wants to arm the felons. It's one massive loser of a political issue with the general public.
7.29.2009 5:42pm
Steve:
Steve, all of our rights can be limited once we're convicted of a crime. You give up a variety of liberty and speech rights during your period of incarceration, probation, or parole. As I noted above, many states bar convicted felons from ever voting again, unless they obtain a pardon. Individuals on parole are subject to random and warantless searches.

I'm obviously not talking about people who are incarcerated or on parole. In terms of people who have paid their dues, though, why is the answer so clear?

First of all, voting is a civil right, a very important civil right, but I wouldn't call it a human right. I'm not aware that even the staunchest human rights organizations would attempt to classify the failure to grant universal suffrage as a human rights violation. So if self-defense is a human right, it ought to occupy an even more privileged status than the right to vote. Moreover, the constitutional basis for felon disenfranchisement isn't even 100% clear.

But let's skip past the felon issue and talk about Scalia's declaration that Heller should not be read to call into question bans on firearms in government or school buildings. Is that really such an easy question that it ought to be brushed aside in dicta?
7.29.2009 5:43pm
cboldt (mail):
-- He goes on to say only that other sources (which he considers more modern and more likely authoritative) "cast doubt" on the Heller dicta. --
.
He also said that the sources that assert "longstanding prohibition" are themselves suspect. IOW, he is impugning not only Heller, but also Dowlut and Kates.
See, e.g., Larson, supra, at 1374 (finding Kates's evidence of longstanding felon dispossession "surprisingly thin") ... C. Kevin Marshall ... (challenging the evidence cited by both Dowlut and Kates)

If the Judge thinks Larson and Marshall are wrong, and the weight of evidence favors the conclusion that the prohibition of felons bearing arms is in fact longstanding, then he has no reason to compose his opinion, except to point out the existence of a couple crank academics who assert that felons used to be able to bear arms after their sentences were served.
7.29.2009 5:45pm
PatHMV (mail) (www):
I beg to differ, Steve. From the Universal Declaration of Human Rights:

Article 21

1 . Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2. Everyone has the right to equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.


From the French Declaration of the Rights of Man:

6. Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.


From the International Covenant on Civil and Political Rights:

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person, ...

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.


So yes, those folks who really study human rights classify voting as a fundamental right, inherent in human dignity, not a "positive right" granted only by the boon of the state.
7.29.2009 5:53pm
PatHMV (mail) (www):
cboldt, it is possible for a person to both believe that they are right about something, but also to accept that reasonable persons may differ about the conclusions. That's what the judge said. He did not say that "objective reality" conflicts with the Supreme Court. Interpretations and analysis of fairly poorly documented historical practices are not good areas in which to claim "objective reality."
7.29.2009 5:55pm
jccamp (mail):
I think Pat has it correctly. Further, I think the distinction between "violent" and "non-violent" felonies to be somewhat artificial, or at least, arbitrary, and really misleading and even meaningless when used as a predictor of future criminal violent behavior.
7.29.2009 6:00pm
Steve:
So yes, those folks who really study human rights classify voting as a fundamental right, inherent in human dignity, not a "positive right" granted only by the boon of the state.

Well, fair enough, then I'd say that bolsters my claim that there's a nontrivial argument against felon disenfranchisement. We certainly shouldn't take it as a given that felon disenfranchisement is OK and then use that as a basis to deny other critical rights.

And certainly none of this has to do with Scalia's dicta concerning guns in government buildings and schools. Heck, what makes government buildings special, other than that the government likes to live by its own set of rules?
7.29.2009 6:00pm
PatHMV (mail) (www):
Steve, on your second question, all I really know about the history of such things is that in a great many old Westerns, the town had a sign asking those with guns to check them with the sheriff or the marshal upon coming into town.

And again, in that situation, I don't think the analysis is unique in any way to the 2nd Amendment, unless (and I don't think this is at all supported by the historical evidence) you insist that the 2nd Amendment right is considered far more fundamental than the First and other Amendments, and thus cannot be restricted even where those other rights can be. For a litany of reasons, courts have held that your freedom of speech can be curtailed while in the courthouse.
7.29.2009 6:01pm
aquitine (mail):

After all, felons lose out on fundamental rights such as voting and serving on juries, and face discrimination that need only survive rational basis review.


As a general principle, I have trouble seeing how it could be constitutional for a state to prohibit every person convicted of a felony from ever again casting a vote, for the rest of their lives, but could not prohibit such persons from carrying guns.


Why does this keep coming up? There is no enumerated right to vote - there are restriction as to on what basis you may restrict someone from voting (i.e., you can not prohibit someone voting based on gender), but as long as the reason is not targeting a protected class, it is fine. A state *could* have no voters at all. A state *could* say you must earn over 100K/yr to vote. (and yes, I understand it depends on the state constitution, and it is detrimental to the state's own interest, as to seats in the House).

On the other hand, the 2nd amendment is an enumerated right, that comes right after the guarantees of freedom of speech and religion, and right before two provisions regarding privacy. No one would support permanently (even after release from custody) enjoining all felons from exercising their rights under the 1st, 3rd, or 4th amendments - so why treat the 2nd any different?
7.29.2009 6:07pm
cboldt (mail):
-- He did not say that "objective reality" conflicts with the Supreme Court. --
.
My comment, that you object to, was, "even though the dicta is not supported by the citations or objective reality ..." My point is that the judge is arguing that it is highly likely that the citations (that purport to express an objective historical reality vis-a-vis the assertion that prohibition on felon bearing are "longstanding") and the dicta diverge. If he doesn't have this objection, he has no reason to compose this particular concurring opinion.
.
Rephrase my comment to suit yourself; its point is to acknowledge that the judge has a beef (cites and Heller diverge), and his beef is supported, in his mind, by observing this divergence.
7.29.2009 6:10pm
Steve:
For a litany of reasons, courts have held that your freedom of speech can be curtailed while in the courthouse.

Huh? I guess they can prevent you from disrupting the proceedings, but we're not talking about someone who wants to conduct target practice in a courthouse, merely someone who wants to peacefully bear a firearm in a government building. Surely there's no case that says you forfeit your First Amendment rights altogether when you enter the courthouse door, as a gun ban causes you to forfeit your Second Amendment rights.
7.29.2009 6:10pm
PatHMV (mail) (www):
"No one," aquitane? I know plenty of people who would support stripping convicted felons of their 4th Amendment rights. Commit armed robbery once, they think, and you should forever forfeit your right to keep the police from snooping around in your stuff.

As a reminder again, most people in this country really don't care for felons in general. When it comes time to vote, the side courting the felon vote usually loses out.

By the way, the right to vote is deeply and inherently embedded in the Constitution. Were it not considered a fundamental right, the 14th Amendment says "The right to vote shall not be infringed on account of ..." If it wasn't a fundamental right, inherent in the Constitution, that would say "the ability to vote" or "the privilege to vote." As a reminder of basic civics, our rights are inherent in us; they are not granted to us, enumerated or otherwise, as a boon by the government. Voting is one of those rights.
7.29.2009 6:17pm
krs:
Judge Tymkovich cites articles by 2 Conspirators... including the Kopel's scathing indictment of the CA10's pre-Heller Second Amendment precedents.
7.29.2009 6:20pm
ShelbyC:

So yes, those folks who really study human rights classify voting as a fundamental right, inherent in human dignity, not a "positive right" granted only by the boon of the state.



Huh. So how does one vote if there is no state?
7.29.2009 6:22pm
Steve:
As a reminder of basic civics, our rights are inherent in us; they are not granted to us, enumerated or otherwise, as a boon by the government.

I don't even know how you can type this when a majority of Americans were not permitted to vote for most of our nation's history, until guess what, the government decided to let them do so. Yes, it's all well and good to say "you had the inherent right to vote all along!" but it's pretty meaningless.
7.29.2009 6:23pm
PatHMV (mail) (www):
Not altogether, no. But if you tell the judge in open court, "go fuck yourself, your honor. This courtroom is run by thieves and liars," you're going to jail, and that contempt conviction is going to be upheld. Reasonable restrictions on the exercise of the First Amendment in the courthouse, restrictions which are consistent with the fundamental needs and purposes and functions of the courts, are upheld. you don't "forfeit" your second amendment rights by entering a place where carrying guns are restricted; your rights are temporarily limited.

Are you seriously arguing that, for example, litigants in a heated divorce proceeding should be allowed to carry firearms into court? How about the associates of criminal defendants, during a criminal trial?
7.29.2009 6:23pm
cboldt (mail):
-- its point is to acknowledge that the judge has a beef (cites and Heller diverge) --
.
Just to add/repeat, that was not my ultimate point. My ultimate point was that this judge, even though he has this objection, and even though (this is my observation) the Heller dicta is superfluous to the Heller decision, Judge Tymkovich still felt bound by the conclusory dicta laid down by the Heller court. IOW, given a conflict, he'll side with "error" as a matter of law, if SCOTUS makes an error in dicta.
.
Short version, "We are bound by dicta" bugs me. "We are bound by dicta that is not well supported by facts" bugs me more. "We are bound by dicta that probably collapses on scrutiny" is simply amazing.
.
But, all that said, none of that surprises me in a 2nd amendment case.
7.29.2009 6:26pm
PatHMV (mail) (www):
Steve, if you want to undermine the philosophical premise underlying our entire system of government, that's ok by me, but what I said does indeed constitute the fundamental thinking of the basis of our rights. Indeed, a significant faction of the Founders were opposed to passing the Bill of Rights, because they feared that they would come to be seen as grants of rights rather than mere explicit limitations on the powers of government. Is there always a practical difference? Not necessarily. But the same thinking allows us to say that residents in D.C. had the right to carry guns all along, it was just that it took until last year for the Court to recognize that right. That doesn't make a lot of practical difference to those who wanted to, but couldn't, buy or bring guns into the city, but without that way of thinking, the Court is simply imposing its arbitrary opinions on everybody.
7.29.2009 6:28pm
ShelbyC:

Yes, it's all well and good to say "you had the inherent right to vote all along!" but it's pretty meaningless.


It's not meaningless. Recoginizing that folks have inherent rights is how we stop violating them.

We passed the 13A because people have the inherent right to be free; People don't have the right to be free because we passed the 13A.
7.29.2009 6:28pm
aquitine (mail):
PatHMV,
Ok, you're right, you can always find someone who will support anything.
At any rate, the 15th amendment is actually an anti discrimination amendment. It compares textually to almost any anti employment discrimination law you could find. It operates to prevent a state from denying anyone the privilege of voting based on a protected class. If you have case law that proves differently, I would love to see it.
The usage of the word "right" in the clause should probably be read as referring back to the unenumerated rights of the states and their citizens - and those rights are controlled by an agreement between the citizen and the state.

But to the main point, why isn't a comparison to the 1st, 3rd, or 4th used more often? Why do people insist on using a "right" that isn't even enumerated when discussing the 2nd?
7.29.2009 6:34pm
Steve:
But if you tell the judge in open court, "go fuck yourself, your honor. This courtroom is run by thieves and liars," you're going to jail, and that contempt conviction is going to be upheld.

Yes, and likewise if you pull out your gun and shoot the judge, no one is going to argue you had a Second Amendment right to do so. Can we maybe stop pretending I am making some crazy argument like "incarcerated felons have a right to own guns in prison"?

Are you seriously arguing that, for example, litigants in a heated divorce proceeding should be allowed to carry firearms into court? How about the associates of criminal defendants, during a criminal trial?

All I am arguing is that Scalia's Heller dicta was an inappropriate exercise of political CYA on his part. You're the one who's putting all these crazy arguments in my mouth.

Is it possible for someone to say "You know, I think there's a nontrivial argument that outright bans on guns in government buildings are unconstitutional" without simultaneously being in favor of allowing associates of criminal defendants to bring guns into the courtroom? Or do you find that extrapolating arguments to the greatest degree of absurdity you can think of is generally helpful in conducting a reasoned discussion?
7.29.2009 6:36pm
Oren:

That doesn't make a lot of practical difference to those who wanted to, but couldn't, buy or bring guns into the city, but without that way of thinking, the Court is simply imposing its arbitrary opinions on everybody.

Truly your enumeration of the possibilities are exhausting!

Perhaps you omitted, however, the possibility that the Federal Government had been in violation of its duties as freely negotiated by the ratifiers. IOW, rights can exist as a matter of contract (as opposed to you false dichotomy of either being inherent or the arbitrary opinion of judges).

It's always nice to have a third (and fourth and fifth) option, isn't it?
7.29.2009 6:44pm
Phatty:

All I am arguing is that Scalia's Heller dicta was an inappropriate exercise of political CYA on his part.

That is probably correct to a certain degree. The dicta makes much more sense when viewed in the context of the briefs and the oral arguments. Many arguments advanced to the Supreme Court were along the lines of "if you find an individual right in the 2A, all hell will break loose because laws against machine guns and felons possessing firearms will be invalidated." So, Scalia went out of his way to address those claims, which I believe was judicial activism.

It seems hypocritical that the majority in Heller did an in-depth analysis spanning 50 pages to arrive at the holding, and then ruled on the constitutionality of multiple regulations in the span of one to two sentences with no analysis whatsoever.
7.29.2009 6:59pm
SGD (mail):
Footnote 26 of Heller clarifies that such laws are "presumptively lawful." All acts of Congress are "presumptively constitutional," even those which seem blatantly unconstitutional. The circuit courts are ignoring footnote 26 and shirking their responsibility to analyze whether the presumption of constitutionality has been rebutted.
7.29.2009 7:35pm
PatHMV (mail) (www):
Steve, to state what's obvious to all but the most hard-core gun rights folks, the consequences of pulling out a gun and blowing away the judge are rather more significant than cussing out the judge. The remedy for bad speech is more speech; the remedy for shooting somebody dead in a fit of passion is not more shooting.

You can make a non-trivial argument along the lines you describe, but you have to accept the consequences and tell us how you expect to deal with the problems which arise. One of those problems, if you state a general right to bring a gun into a courthouse, is deciding whether and how that right can be limited as applied to any particular subset of people. Would you allow bans in the courtroom itself, but not the courthouse? Or would the government be empowered to say: "hey, looks to me like you're with the defendant and his family, so you can't carry a gun into the courtroom, even though those other guys, who are neutral observers, can"?

I never said you were advocating for incarcerated felons to carry guns in prison. But you need to explain why your rule allows inmates (who are at great risk of being shanked to death) can be deprived of the right to defend themselves, if the right to self-defense is so deeply inherent in every individual.

Aqitane, to be blunt, I'm not going to waste time arguing with somebody who refuses to concede that the right to vote is an inherent right, and is somehow less fundamental than the rest of the Bill of Rights.
7.29.2009 7:38pm
Brooks Lyman (mail):
PatHMV,

At risk of being classed as a right-wing crank, I would posit that many of the "human rights" that are enumerated in the various declarations you list are often, in fact, the wishful thinking of the authors of those declarations. As an example, many in the Islamic world do not believe in democracy or elections; thus they don't believe in a right to suffrage. Therefore, suffrage is better classed as a "civil right," and should be understood to be culture-specific.

One doesn't have to like this situation to agree with its logic.

As for "Human Rights," I prefer to keep it simple: "Life, Liberty and the pursuit of Happiness." You can derive much of the Bill of Rights from that statement.

I tend to agree with Judge Tymkovich about non-violent felons. It is unfortunate that 18 U.S.C. § 922(g)(1) is too broad, and that it ought to differentiate between violent and non-violent felons, the latter often posing serious future danger to society, while the former never posed such a danger.

Also, the disarmament provisions of the domestic violence misdemeanor law ought to have some sort of sunset provision or time limitation based on good behavior; these laws tend to be the subject of abuse while the parties to such misdemeanor cases are almost never guilty of the misuse of firearms. Having a loud domestic argument - possibly even with a slapped face on one side or the other - reported to the police by a concerned neighbor can wind up with one or both parties stripped of firearms rights - and thus, the only practical defense against home invasion. I wonder whether the courts would allow (say) the wife to own firearms for protection if her husband were convicted of a DVM (assuming that they are still living together)? And what would happen if the husband were to use the firearm to defend himself or his family against criminal attack?

And while it is true that a convicted felon still retains the right of self defense, the fact of the matter is, that firearms are the best means of self defense, and often (against a criminal armed with a gun, for example) the only meaningful defense. I don't think that it improves the quality of life and safety in this country to disarm more and more people, who have never posed a threat to public safety, simply on the basis of what is, to a great extent, "feel-good" legislation.
7.29.2009 7:40pm
Steve:
One of those problems, if you state a general right to bring a gun into a courthouse, is deciding whether and how that right can be limited as applied to any particular subset of people.

Why don't we talk about the 99% of government buildings that are not courthouses, if you're so bothered by the courthouse problem.

All you're doing with your endless array of questions and hypotheticals is reinforcing my point, to wit, these are complex issues that Scalia shouldn't have simply shrugged off in a single sentence of dicta. Rather, the questions of felon bans, government building bans, etc., should have simply been left to arise in the context of a future case with a specific set of facts.
7.29.2009 7:46pm
PatHMV (mail) (www):
Brooks, I agree that 922(g)(1) is far too broad. In a previous job, I was pardon counsel for my state's governor. We had hundreds of pardon applicants whose only reason for trying to get a pardon was so they could go hunting with their children or grandchildren, often 10 or 20 years of clean living following a relatively minor offense (breaking and entering a closed business, possession of marijuana or cocaine, etc.). I'm highly offended, as a supporter of gun rights, that Congress has consistently passed, in the appropriations bills, language prohibiting ATF from expending any funds to process the waiver requests allowed by the law. (By the way, anybody interested in actually advancing the firearm rights of felons, rather than merely make political hay of an issue, should consider channeling their energies into pushing Congress to strip that limiting language from the next appropriations bill.)

I would agree with you also on the idea of a sunset provision for the DV limitations. I support the DV limitations. While they are subject to abuse, and they don't stop a determined killer, they can prevent at least some spontaneous killings by abusive spouses (or soon to be ex spouses). But once the divorce is over, assuming the subject of the order isn't still actively threatening the former spouse/lover/whatever, there's no reason for a life-time ban.
7.29.2009 7:53pm
PatHMV (mail) (www):
Ok, Steve. Let's take the IRS office. Lots of irate people go there. Many people viscerally hate the IRS, and when you have to go there, odds are you're not going to be having a very good day, and emotions are going to be running high. Employees of the government in such circumstances really shouldn't have to worry about getting shot in the office.

The thing with Justice Scalia's dicta is that I don't read it at all the way the judges in this case did. All he said, as I see it, is that nobody should be citing Heller for the proposition that the Supreme Court has now tossed out those other laws. Justice Scalia has rarely shown signs of writing opinions simply to be "politically correct," so it's going to take a lot more evidence than that little bit of dicta to convince me that he was trying to CYA. It's not his style. At most, he was careless with his language.
7.29.2009 8:00pm
Matthew Carberry (mail):
Can DV limitations rationally prevent even some spontaneous killings? Really?

I'm angry enough to kill my wife but I won't because, in addition to felony murder, I might go down on a Lautenberg beef?

That's ridiculous on its face.

It presumes that spontaneous killings will only occur with firearms (as opposed to bludgeons, knives, bare hands, automobiles, arson, explosives, etc.).

It presumes that the wife or sig. other will have complete knowledge of their partner's available firearms and that law enforcement will collect them all.

It presumes that the alleged violent partner won't then go get a gun unlawfully through any number of means.

I'm not asking a defender of Lautenberg to prove how many spontaneous killings were or might have been prevented by this idiotic legislation; but, in the face of so many logical problems with the whole concept, how does such a defender justify the abrogation of a fundamental right?

Especially since we can actually prove that many Lautenberg-incurring allegations are in fact made simply out of bitterness and not due to any genuine documentable threat.

Is it the tired "if it saves just one life" canard?

Are intellectually honest grown ups still allowed to use that one un-ironically?
7.29.2009 8:18pm
byomtov (mail):
Let's take the IRS office. Lots of irate people go there. Many people viscerally hate the IRS, and when you have to go there, odds are you're not going to be having a very good day, and emotions are going to be running high. Employees of the government in such circumstances really shouldn't have to worry about getting shot in the office.

OK, Pat. But people also get irate in places other than government offices. I've been irate in my very own office, indeed, in my living room.

I think Steve is asking why government offices are to be exempted. If he's not I am. My guess is Scalia doesn't want people carrying guns where he works, but is perfectly comfortable with them carrying where you work. The implications about Scalia's beliefs are left as an exercise for the reader.
7.29.2009 8:27pm
Matthew Carberry (mail):
As for the IRS office.

How exactly does a mere "ban on carry", unenforced by metal detectors or armed security in every IRS office open to the public I've been in, prevent someone willing to commit murder from carrying to that end?

Does the internal dialogue go something like, "I'll kill that pencil-necked so-and-so... whoops, can't take my gun in or it's a felony. Guess I'll wait for him out here in the parking lot so I only face the murder charge."

If a ban can be realistically enforced, it at least isn't intellectually insulting.

How can an IRS agent rationally feel safe with only a sign on the door between them and a potential attacker? That's magical thinking.
7.29.2009 8:27pm
Tatil:
I suspect many crimes are not planned or provisioned in advance. I doubt "Heat of the moment", "just snapped" are Hollywood fantasies. Knowing that it is possible to obtain a gun illegally does not solve the problem of actually knowing how to obtain it. While doing a Google search on "Illegal gun sales [insert city name]", your rational part of the brain might kick in. It still takes much longer to obtain a gun illegally than by just pulling one out of the closet.

I am curious. Do you lock your car? After all, breaking a car window must be very easy.
7.29.2009 8:53pm
Steve:
The thing with Justice Scalia's dicta is that I don't read it at all the way the judges in this case did. All he said, as I see it, is that nobody should be citing Heller for the proposition that the Supreme Court has now tossed out those other laws.

But maybe the Supreme Court HAS tossed out those other laws. See, under Article III, that can't be determined until someone brings a case to challenge one of those other laws and someone argues that the law is invalid under Heller. It's not for Scalia to determine in summary fashion how his decision applies to cases that aren't before the Court.

The problem is that when a court says "don't worry, we're not going down the slippery slope," without conducting any analysis to determine whether it would be appropriate to go down the slippery slope, it's a completely empty and inappropriate assurance. If Griswold had said "this decision should not be read to suggest there is a right to an abortion," would Roe have come out differently?

If your answer is yes, then it's not just dicta, it's the Court prejudging a future case without the benefit of briefing and argument. If your answer is no, then you ought to see my point that dicta like Scalia's is just a meaningless reassurance designed to tell the public that the Court hasn't done anything radical. But maybe it has.
7.29.2009 9:03pm
Oren:

As for "Human Rights," I prefer to keep it simple: "Life, Liberty and the pursuit of Happiness." You can derive much of the Bill of Rights from that statement.

And yet most of the Constitution is entirely surplusage then: the House, the Senate, the census, the whole "republican form of government" nonsense!
7.29.2009 9:49pm
Oren:

How exactly does a mere "ban on carry", unenforced by metal detectors or armed security in every IRS office open to the public I've been in, prevent someone willing to commit murder from carrying to that end?

Because the vast majority of murderers don't premeditate. It's more like a man that carries concealed might become irate while in the government building (why won't he accept my &$&*#*#&* DEDUCTION ?!@!@##?) and lose his cool.

Murders in the US are almost all crimes of passion.


Can DV limitations rationally prevent even some spontaneous killings? Really?

I'm angry enough to kill my wife but I won't because, in addition to felony murder, I might go down on a Lautenberg beef?

No, it's more like "you've already demonstrated a total lack of self-control by smacking the wife around, therefore you shouldn't have a pistol in the house so that next time you lose self control, it will be misdemeanor DV instead of murder 2."

Once you've proven that you are incapable of controlling your anger, the main justification for owning a firearm (that you are more likely to use it to defend life and limb versus to assault it) evaporates.
7.29.2009 10:00pm
PatHMV (mail) (www):
Thank you, Oren. That's it exactly. I'm a strong supporter of gun rights in general. But there's a subset of extreme gun rights supporters who act as if every single solitary person carrying a gun will always and at all times remain in complete control of themselves, and could never, ever snap and shoot somebody in the heat of passion. That some people will do so is not sufficient justification for a widespread ban on gun possession, but is, to me, sufficient justification for some limits.

As for "bans on carrying in the IRS building are useless unless there's metal detectors," well, they usually have such in government office buildings which tend to deal with irate people.

As for a legal rationale, the government is allowed to do a great many things in its capacity as employer or property owner that it's not allowed to do in its capacity as government. Government employees can be fired for their speech, while working, that would be protected free expression in another context. The government, which can't generally control who can walk down public streets, can control who is allowed to access government buildings.

Of course, some gun rights activists believe that desire to carry a gun everywhere should trump the property rights of their employers and others to decide what is and is not allowed on that private property, so I assume that such folks will think that if private property owners should not be able to ban gun-carriers, certainly the government should not.
7.29.2009 10:15pm
VVDH:
The Tymkovich concurrence is (mostly) on the money. He's right that the felon in possession dictum is questionable considering 1) what Heller actually says, and 2) the spotty history of felon in possession laws. And he's also right in pointing out that Heller's dicta gives lower courts an easy out when addressing all sorts of otherwise troubling gun control laws ("otherwise troubling" considering what Heller holds, that is; they're not "otherwise troubling" politically speaking). It's usually the job of the district/appeals courts to figure out how the Supreme Court's rule affects all sorts of laws, and that's definitely not happening on the felon in possession front. Who knows, though, perhaps without this dicta we wouldn't have had 5 justices agreeing on one opinion.

What I don't like (as others have pointed out) is how Tymkovich raises these concerns about the dicta but then cops out by citing Tenth Circuit case law about following Supreme Court dicta. Really? Even when the dicta are highly questionable? It looks like the good judge has some reasonable concerns here, but he's content to simply express them without doing much more.

Also, I would point out that Tymkovich simply assumes that Scalia's reference to "longstanding" felon gun bans means they existed at the time the 2nd Amendment was adopted. But couldn't "longstanding" simply refer to 20th century gun bans? (Of course, this would do nothing to affect Tymkovich's ultimate point that the dictum is itself undermined by/in conflict with Heller's originalist holding.) I just thought it odd that he automatically assumed "longstanding" = "since the 18th century."
7.30.2009 1:15am
Ricardo (mail):
In the old days, the death penalty was enforced against many felons so I don't know how useful legal tradition is on this point.

In 2019, ten years from now, John Walker Lindh will be eligible for release from prison on charges of serving in the Taliban. Would 2nd Amendment absolutists be happy with allowing Lindh to own any kind of legal firearm he wants? Even being convicted of aiding a foreign terrorist organization isn't enough to lose one's right to own a gun?
7.30.2009 2:03am
Abandon:
In 2019, ten years from now, John Walker Lindh will be eligible for release from prison on charges of serving in the Taliban. Would 2nd Amendment absolutists be happy with allowing Lindh to own any kind of legal firearm he wants? Even being convicted of aiding a foreign terrorist organization isn't enough to lose one's right to own a gun?

You know very well terrorism wont be an issue anymore by 2019. No doubt President Limbaugh will be much busier waging war against the United States of Canada (after blue/commie States will have seceded to form a badass national hockey team). No one will remember John Walker Lindh by then.
7.30.2009 2:23am
Floridan:
PatHVM: "it is possible for a person to both believe that they are right about something, but also to accept that reasonable persons may differ about the conclusions."

Not on the internet, you socialist pinhead!
7.30.2009 8:25am
Don M. (mail):
Look, I'm an engineer, who reads this blog because I find the arguments/dicsussions interesting, but I am also a 2nd Amendment supporter, and the discussions above have always raised issues that I don't understand how they ever passed any rational thought by the courts.

For example, bans on handgun possesion in public buildings (i.e., those run by the government.)

Why can handgun or any firearm posession ban in a government building pass constitutional muster, if certain people are excepted from that ban (government employees)? When I go into an IRS office, or a courthouse, or any other government building, I do not lose constitutional rights, do I? Especially since in many cases, I have no choice under threat of arrest or other unpleasant circumstances enforced at the point of a gun by govenrnment. Plus, the 2nd Amendment is not about private self-defense, but about keeping the populace armed against government tyranny, so it seems to me this ban is actually directly against the intent of the constitution.

Of course, the argument is, as I understand it, that the posession of a firearm makes it easy for someone to get upset, angry, etc., and then just shoot someone. But, in all "public" places where firearms are banned, certain people (government officials like police, judges, bailiffs, etc.) are allowed to carry firearms. If the mere posession of a firearm makes one a potential murderer, and by law, when you go into that building, which in many cases you do not have the right to refuse to go to, where is your protection against that government official going nuts and shooting you for no good reason? After all, police, judges, bailiffs, and other government officials are human beings, too, with the same stresses and pressures and failings that the general populace has. In fact, I would guess that if you look at the statistics, police officers may be more likely to kill someone in a "crime of passion" than the general populace, because as a group, police officers are 100% armed, and if the gun control advocates are right, the mere posession of a gun makes you a potential murderer who cannot control themselves and will kill with no reason whatsoever.

I would argue that we would be safer with more people armed, since the vast, vast, vast majority of the armed would not be criminals or killers, or psychopaths, or whatever undesirable group you might name, but simply law-abiding citizens who want to do the right thing for themselves, their family, and society as a whole. There would not be wholesale slaughter, and there would be a deterrent effect.

Secondly, the way I understand Heller is that it affirmed a right to self-defense in the home, but it is rather unclear if I lose that right if I leave the home. To me, that is non-sensical, because you are basically saying that I have a right in my home, that I lose when I leave it.

In other words, the second I step off my yard into the street, I become a criminal for carrying a firearm that was perfectly legal for me to posess three feet away, and that I lose my right to self-defense because I chose to leave my domicile?

I may be confused, but there is a huge logic hole here, but I guess the law doesn't have to have logic in it.
7.30.2009 8:58am
PatHMV (mail) (www):
lol, Floridan. You are so right.

Don, as tough as it may be for an engineer to grasp this concept, the fact that you disagree with something does not in fact make it non-rational or illogical. In your own post, you've laid out the rational reasons for banning firearms in government buildings. Your own personal analysis (not conducted with engineering thoroughness, I presume) is that the relative risks and benefits should lead to a conclusion that guns CAN be carried in government buildings. That you view the relative risks and benefits differently than I do, that you think they have different values, does not make either of us irrational or illogical. This is not engineering, where the value of something can be objectively measured and determined. Does a ban on guns in certain places increase or decrease the risk of death or serious bodily injury to innocent people located in that place? You can't calculate that like you can the risk of failure of some particular span of a bridge under some given load condition.

I absolutely agree with you that, on the whole, society is better off and safer with people having the right to carry firearms, as a general rule. I can't prove that I'm right, objectively, any more than you can, but I agree with you. But that doesn't mean that this is true in every single circumstance. In a career spent in substantial part working in law enforcement or with criminal justice policy issues, I have indeed seen many deaths and injuries which would not have occurred, or would have been less severe, had the offender not been carrying a gun at the time. Some of those involve real criminals who would have carried a gun whether against the law or not. But plenty of them were "crimes of passion," where the offender was a generally law-abiding (if occassionally hot-headed) member of society. And you know what, just as there's some shooting sprees which could have been stopped, had at least a few of the victims been armed, there's also some people dead out there who wouldn't be, had the attacker come at them with a knife or baseball bat, instead of a gun.
7.30.2009 9:22am
SusanV:
I suppose it's dicta in Heller but it also expessly limits the application of it's own decision. Surely, the Supreme Court can do that (has done that) and the inferior courts must follow.
7.30.2009 9:55am
Oren:

When I go into an IRS office, or a courthouse, or any other government building, I do not lose constitutional rights, do I?

You don't *lose* those right, they simply don't apply there.

For instance, under Lawrence v. Texas you have the right to consensual sodomoy. You don't, however, have the right to sodomize your partner on the elementary school playground.

Under Texas v. Johnson (oh Texas), you have the right to burn the flag in symbolic protest. You don't, however, have the right to march down the aisles of the public library with a burning flag.

You can't take your gun on a plane, you can't picket in front of someone's private residence (or rather, the city can legally prohibit same), you can't yell 'FIRE' in a crowded theater.

The extent of your rights are not spatially invariant. You don't *lose* them, they simply carry less force depending on where you are.


In other words, the second I step off my yard into the street, I become a criminal for carrying a firearm that was perfectly legal for me to posess three feet away, and that I lose my right to self-defense because I chose to leave my domicile?

You don't lose your right to self-defense. You lose your right to carry a handgun in furtherance of your self-defense. Surely there is a difference between losing the right to do X and losing the right to do X with tool Y.
7.30.2009 10:05am
Clayton E. Cramer (mail) (www):

For instance, under Lawrence v. Texas you have the right to consensual sodomoy. You don't, however, have the right to sodomize your partner on the elementary school playground.

Under Texas v. Johnson (oh Texas), you have the right to burn the flag in symbolic protest. You don't, however, have the right to march down the aisles of the public library with a burning flag.

But one of these days, those two cases will combine, and Lawrence v. Johnson will work its way up through the courts, where some idiot will argue that the right to sodomize your partner on the elementary school playground is based on symbolic protest of a homophobic society!
7.30.2009 11:15am
Phatty:

You don't lose your right to self-defense. You lose your right to carry a handgun in furtherance of your self-defense. Surely there is a difference between losing the right to do X and losing the right to do X with tool Y.

Take that idea to its extreme. At what point does the limitation of the tools one can use for self-defense completely vitiate that right to self-defense. Consider a 95 pound, 80 year old woman. How would you argue she could defend herself against a 250 pound, 30 year old male attacker without a firearm?

Assume Congress passes a law that states a person's fists and feet are deadly weapons and cannot be used to fight off an attacker. Would you still argue that just because I can no longer use my hands and feet to fight off an attacker does not mean I have lost my right to self-defense?

Would you also argue that the government can tell me that I can no longer communicate using the internet, because "surely there is a difference between losing the right to free speech and losing the right to speak using the internet?"

At some point, yes, taking away the most effective tool to exercise a right is essentially stripping the person of that right.
7.30.2009 11:37am
Phatty:

Would 2nd Amendment absolutists be happy with allowing Lindh to own any kind of legal firearm he wants

If he's so dangerous to society that he can't be trusted with possessing a firearm, why the hell is he being released from prison?

Here's the thing about released felons. They are either reformed and fully intend to comply with all laws, so they are no longer a threat and should be allowed to own firearms, or, they continue to scoff at the laws and will ignore any ban on them possessing firearms. So by banning felons from possessing firearms, you are really only hurting those felons who are now reformed and wouldn't be a threat anyway.
7.30.2009 11:46am
Phatty:

For example, bans on handgun possesion in public buildings (i.e., those run by the government)

I have no problem with this type of ban as long as the government takes on an affirmative duty to protect me after I'm disarmed at the door. If the government is going to limit my ability to defend myself in the public building, it needs to step up and take responsibility for my protection. If any person is attacked and injured in the public building, the government would face strict liability and have to compensate the person for their injuries.
7.30.2009 11:51am
DeezRightWingNutz:

PatHMV (mail) (www):
Not altogether, no. But if you tell the judge in open court, "go fuck yourself, your honor. This courtroom is run by thieves and liars," you're going to jail, and that contempt conviction is going to be upheld. Reasonable restrictions on the exercise of the First Amendment in the courthouse, restrictions which are consistent with the fundamental needs and purposes and functions of the courts, are upheld. you don't "forfeit" your second amendment rights by entering a place where carrying guns are restricted; your rights are temporarily limited.

Are you seriously arguing that, for example, litigants in a heated divorce proceeding should be allowed to carry firearms into court? How about the associates of criminal defendants, during a criminal trial?


This kind of thinking about Constitutional law drives me crazy. Do you really want (fill in parade of horribles here) to happen? Then it must be constitutional to ban said parade of horribles. What about dispassionately reading the Constitution is a consistent manner, and letting the chips fall where they may? If it leads you to the conclusion that the government can ban guns in courtrooms, fine. But just because you think guns in courtrooms are bad doesn't make banning them constitutional. Just like the fact that we don't want people to have nuclear weapons doesn't mean the that banning their possission necessarily sqaures with the 2A.

If your legal analysis leads you to the conclusion that 1) gun possession can't be banned in courthouses, and 2) gun possession in courthouses is obviously bad, then you should be able to convince people to amend the Constitution to ban guns in courthouses (or possession of nuclear weapons).
7.30.2009 12:27pm
jccamp (mail):
Phatty -

"If he's so dangerous to society that he can't be trusted with possessing a firearm, why the hell is he being released from prison? "

Because he completed the terms of his sentence. It happens every day. Just because a felon has been released does not mean he/she is no longer a threat to society. But you know that, I'm sure. For some exceptions, we don't do preventative detention in this country.

"So by banning felons from possessing firearms, you are really only hurting those felons who are now reformed and wouldn't be a threat anyway."

No. Convicted felons lose certain civil rights by dint of past unlawful behavior. Persons who have shown a propensity to commit crime are denied right of firearm possession, as both punishment and as a means of protecting other law-abiding persons. Any convicted felon who chooses to ignore the law and to illegally possess a firearm has committed a new offense, and puts himself/herself at peril of further sanction, and in the process, allows society to again cull the lawbreakers.

Removing rules because persons of bad intent will break them does not strike me as very good policy.

I suppose people contemplating committing felonies should consider the consequences before they break the law. That would include the forfeitable right of possessing a firearm.
7.30.2009 1:59pm
OldEasterner:

While doing a Google search on "Illegal gun sales [insert city name]", your rational part of the brain might kick in.


VC commenters seem to not know how prohibited persons purchase guns.

All it takes is a talk with a drug dealer (seemingly easy to find in most cities) and a show of cash. If the prospective buyer hasn't previously developed a trust relationship with the dealer (perhaps rare), then he brings a friend along who has.

Arrangements are made, and "free delivery" is often an option.
7.30.2009 3:22pm
Oren:
OE, most drug dealers will not touch guns or associate with anyone that does. First, violence is bad for business and second, it attracts the cops, which is even worse for business. In Chicago, for instance, the cops will pretty much let you slang on the corner but if they catch your with a gun, they might shut down the neighborhood (and each day out of business is $5k, at least) for a week until you "learn".

Lastly, most gangs keep a very strict control over guns as a way to maintain a monopoly on the use of violence within their fiefdom (in addition to keeping the police off their backs).
7.30.2009 4:57pm
mbirch (mail):
I believe that it is also against the law for someone with a felony conviction to hire armed bodyguards.

I can't for the life of me find the section of US Code tho.
7.30.2009 6:23pm
markm (mail):

Because the vast majority of murderers don't premeditate. It's more like a man that carries concealed might become irate while in the government building (why won't he accept my &$&*#*#&* DEDUCTION ?!@!@##?) and lose his cool.

Oren, how about finding some statistics on the murder rate by the holders of concealed gun permits before you make claims like this? I expect you'll find that the chance of a CCW holder shooting someone, other than in self-defense, is far lower than the chance of the average person beating someone to death with whatever blunt object is handy.
7.31.2009 7:11am
Kirk:
Phatty,

It's not just within the courthouse doors where the the government needs to have an affirmative duty to protect you, it's on your entire journey to and from the courthouse where you will be disarmed.

That is, unless your state follows mine in requiring courts to provide storage for those entering armed. RCW 9.41.300.1 states:
(1) It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon:
...
(b) Those areas in any building which are used in connection with court proceedings, including courtrooms, jury rooms, judge's chambers, offices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection with court proceedings. The restricted areas do not include common areas of ingress and egress to the building that is used in connection with court proceedings, when it is possible to protect court areas without restricting ingress and egress to the building. The restricted areas shall be the minimum necessary to fulfill the objective of this subsection (1)(b)
...
In addition, the local legislative authority shall provide either a stationary locked box sufficient in size for pistols and key to a weapon owner for weapon storage, or shall designate an official to receive weapons for safekeeping, during the owner's visit to restricted areas of the building. The locked box or designated official shall be located within the same building used in connection with court proceedings. The local legislative authority shall be liable for any negligence causing damage to or loss of a weapon either placed in a locked box or left with an official during the owner's visit to restricted areas of the building.

Now we're getting somewhere! Just add this requirement for all other places where guns are banned, and an opt-out provision providing strict liability for any harm occurred if the banning location doesn't provide storage, and I could live with that--governments and other entities could no longer externalize the risks created by their gun-free-zone policies on others.
8.2.2009 12:02pm

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