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New podcasts on Second Amendment issues:

Late last month, I taped a couple new podcasts for the Independence Institute's iVoices.org: One is on the Thune Amendment, to create national concealed carry reciprocity; the bill fell a little bit short of the number of votes needed to beat a filubuster. The other is on my Senate Judiciary Committee testimony against the nomination of Sonia Sotomayor.

On another topic...as has previously been noted on the VC, a concurring opinion by Judge Tymkovich in a recent Tenth Circuit case, United States v. McCane, suggests that the constitutionality of the absolute ban on firearms possession by all convicted felons should be re-examined by the Supreme Court. The opinion cites my article, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, 86 Denv. U. L. Rev. 901(2009), which was part of the DU L Rev's annual Tenth Circuit Symposium.

Jon Roland (mail) (www):
One of the problems with unconstitutional legislation is the way it encourages unconstitutional legislation to counter it.

There is no authority in the Constitution for Congress to require states to extend reciprocity to the gun permits of other states, or anything else.

The remedy for state gun control legislation is militia legislation that requires persons to be armed, supplied with ammunition, trained, and organized. Now that would be constitutional.
8.7.2009 8:42pm
/:
Now that would be constitutional.

All the more reason to oppose it. Also, because it scawes me to see people armed in the street. How can police protect me if my victims are defending themselves?
8.7.2009 8:44pm
Jon Roland (mail) (www):
There is a fundamental problem with disabling the RKBA (or any other right) for any person without arguing and proving a judicial petition to explicitly do that. It is not due process to disable one right on the basis of a due process proceeding over another right. See Public Safety or Bills of Attainder?
8.7.2009 8:49pm
byomtov (mail):
I really don't get the objection to barring convicted felons from owning firearms. A convicted felon loses lots of rights for some period of time - he's in prison. Why is it suddenly unconstitutional to deprive him of one more for life?

In other words, why can't that deprivation be considered part of the punishment for committing a felony? We have other non-imprisonment punishments - fines, probation, etc. What amkes this different?
8.7.2009 9:13pm
Frater Plotter:
There is no authority in the Constitution for Congress to require states to extend reciprocity to the gun permits of other states, or anything else.
Of course there is. It's called the Full Faith and Credit Clause. It gives Congress the authority to regulate the manner in which states must respect the acts of other states -- such as issuing marriage licenses or gun permits.
8.7.2009 9:36pm
Allan Walstad (mail):
A 21-year-old robs a liquor store, gets caught and convicted, does the time, straightens out, lives an exemplary life. 50 Years later as an old man, he can't possess a gun to defend himself, his wife, and the grandkids staying for the weekend. Does that really make sense? It ought to be possible for someone to live down a crime committed decades ago and for which due punishment was served. Rather than an automatic lifetime disqualification, why not make a period of disarmament part of the sentence? For example, how about 25 years or the length of the sentence, whichever is longer?
8.7.2009 9:38pm
Allan Walstad (mail):

Full Faith and Credit Clause.

I'm curious. Does a state in which the minimum driving age is, say, 17 have to honor the licenses of younger drivers from other states?

On federally-mandated concealed carry reciprocity: What I think might make more sense is for Congress to enforce the Second Amendment by setting up its own permit system and requirements. Anyone with a national permit could carry in all states and DC. Individual states could still allow their own citizens to carry in those states without a permit or with a permit having less restrictive qualifications. Concealed carry reciprocity legislation being currently supported by the NRA and other pro-2A groups would, as I understand it, allow Vermont residents to carry anywhere in the US simply because Vermont doesn't require a permit. That strikes me as a bit much, and possibly counter-productive from a political standpoint as well.
8.7.2009 9:59pm
Malvolio:
A 21-year-old robs a liquor store, gets caught and convicted, does the time, straightens out, lives an exemplary life. 50 Years later as an old man, he can't possess a gun to defend himself, his wife, and the grandkids staying for the weekend. Does that really make sense?
There's a big difference between something not making sense and its not being Constitutional.

It seems to me, when depriving a felon of a right, the state has to demonstrate that the deprivation is either (1) the punishment or (2) rationally related to a legitimate government purpose connected to the crime. While permanently barring, say, an embezzler from owning a gun would not fit either of those criteria, doing so to Mr Walstad's hypothetical 71-year-old armed robber arguably might fit the second (since the state could claim he is still at risk of recidivism).
8.7.2009 10:26pm
Larrya (mail) (www):
A 21-year-old robs a liquor store, gets caught and convicted, does the time, straightens out, lives an exemplary life.
Or a 17-year-old goes on a joyride. Or someone runs afoul of the IRS. There are lots of non-violent felonies these days.
A convicted felon loses lots of rights for some period of time - he's in prison. Why is it suddenly unconstitutional to deprive him of one more for life?
One of the interesting ironies of the controversy is that many folks who believe it’s essential to restore felons’ right to vote are just as vehemently opposed to restoring their RKBA.
8.7.2009 10:30pm
Off Kilter (mail):
"In other words, why can't that deprivation be considered part of the punishment for committing a felony?"

Because it's a fundamental right. Would you have no problems with lifetime prohibition of felon's engaging in free speech? Do you have no problem quartering soldiers in the homes of former felons?
8.7.2009 11:11pm
Allan Walstad (mail):

There's a big difference between something not making sense and its not being Constitutional.

Granted. I was going for the former, which perhaps makes my comment slightly off-subject.
8.7.2009 11:47pm
byomtov (mail):
Because it's a fundamental right. Would you have no problems with lifetime prohibition of felon's engaging in free speech?

We have no problem denying some felons lots of rights for their entire lives. It's called a life sentence.

If a life sentence is legitimate punishment for some crimes why isn't the lesser punishment of denying the right to own firearms legitimate for lesser ones?
8.8.2009 12:11am
Jon Roland (mail) (www):
Frater Plotter:

There is no authority in the Constitution for Congress to require states to extend reciprocity to the gun permits of other states, or anything else.

Of course there is. It's called the Full Faith and Credit Clause. It gives Congress the authority to regulate the manner in which states must respect the acts of other states -- such as issuing marriage licenses or gun permits.

You need to read it more closely:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.


From the Annotated Constitution:

Private International Law
The historical background of this section is furnished by that
branch of private law which is variously termed ‘‘private inter-
national law,’’ ‘‘conflict of laws,’’ and ‘‘comity.’’ This comprises a
body of rules, based largely on the writings of jurists and judicial
decisions, in accordance with which the courts of one country, or
‘‘jurisdiction,’’ will ordinarily, in the absence of a local policy to the
contrary, extend recognition and enforcement to rights claimed by
individuals by virtue of the laws or judicial decisions of another
country or ‘‘jurisdiction.’’ Most frequently applied examples of these
rules include the following: the rule that a marriage which is good
in the country where performed (lex loci) is good elsewhere; the
rule that contracts are to be interpreted in accordance with the
laws of the country where entered into (lex loci contractus) unless
the parties clearly intended otherwise; the rule that immovables
may be disposed of only in accordance with the law of the country
where situated (lex rei sitae); 1 the converse rule that chattels ad-
here to the person of their owner and hence are disposable by him,
even when located elsewhere, in accordance with the law of his
domicile(lex domicilii); the rule that regardless of where the cause
arose, the courts of any country where personal service of the de-
fendant can be effected will take jurisdiction of certain types of per-
sonal actions, hence termed ‘‘transitory,’’ and accord such remedy
as the lex fori affords. Still other rules, of first importance in the
present connection, determine the recognition which the judgments
of the courts of one country shall receive from those of another
country.
So even had the States of the Union remained in a mutual re-
lationship of entire independence, private claims originating in one
often would have been assured recognition and enforcement in the
others. The Framers felt, however, that the rules of private inter-
national law should not be left among the States altogether on a
basis of comity and hence subject always to the overruling local
policy of the lex fori but ought to be in some measure at least
placed on the higher plane of constitutional obligation. In fulfill-
ment of this intent the section now under consideration was in-
serted, and Congress was empowered to enact supplementary and
enforcing legislation. 2

1 Clark v. Graham, 19 U.S. (6 Wheat.) 577 (1821), is an early case in which the
Supreme Court enforced this rule.
2 Congressional legislation under the Full Faith and Credit Clause, so far as it
is pertinent to adjudication hereunder, is today embraced in 28 U.S.C. §§ 1738-1739.
See also 28 U.S.C. §§ 1740-1742.

Things like licenses or permits do not fit into this model.
8.8.2009 12:26am
Jon Roland (mail) (www):
byomtov:

In other words, why can't that deprivation be considered part of the punishment for committing a felony?

It can, if the statute makes it part of the punishment, and that punishment is sought in the crimninal petition, argued before the court, and made an explicit part of the sentencing order. The problem lies in not satisfying those conditions and then legislating the disablement for a class of persons for whom due process might have been done, on a different issue, but not on that issue. See my article linked earlier.
8.8.2009 12:31am
Oren:

It can, if the statute makes it part of the punishment, and that punishment is sought in the criminal petition, argued before the court, and made an explicit part of the sentencing order.

So felon disenfranchisement is also improper unless explicitly sought?


Because it's a fundamental right. Would you have no problems with lifetime prohibition of felon's engaging in free speech?

The right to vote is at least as fundamental as the RKBA.
8.8.2009 2:34am
ValentinoRossi:
In practice (virtually all) Americans had RKBA long before they had the franchise.
8.8.2009 4:11am
Brett Bellmore:

I really don't get the objection to barring convicted felons from owning firearms.


Well, MY objection to it is two-fold:

1. It doesn't really accomplish a whole lot, because it doesn't actually prevent a convicted felon from obtaining a firearm if they're willing to break the law. It only disarms the rehabilitated felons, where's the sense in that?

2. Enforcing it requires that the vast majority of people, who are NOT convicted felons, PROVE that they're not convicted felons, repeatedly, in order to exercise a constitutional right. The mechanisms for doing which have repeatedly, and in my opinion deliberately, been abused to attack the rights of those non-felons.

IMO, while stripping convicted felons, (As part of their sentencing!) of this right, or any other, might be constitutional, it hardly passes any kind of cost/benefit analysis. Unless, of course, you consider harassment of law abiding gun owners a benefit, which I strongly suspect was the case for many of the legislators voting for this sort of legislation.
8.8.2009 8:11am
byomtov (mail):
It can, if the statute makes it part of the punishment, and that punishment is sought in the crimninal petition, argued before the court, and made an explicit part of the sentencing order.

Being imprisoned involves lots of unpleasant restrictions, yet I don't think they are explicitly identified in every criminal statute. As long as there is a statute that covers felons in general, what's the problem?

I doubt there is a specific statute that says if you are convicted of armed robbery you can't have a beer for the duration of your sentence.
8.8.2009 10:35am
Jon Roland (mail) (www):
The RKBA stems from the constitution of nature, and its corresponding militia duty from the constitution of society, both of which preceded and are superior to the constitution of government, from which stem the rights to vote and hold office. We may consider a right fundamental if it stems from one of the constitutions that precede the constitution of government.

To be done right, a criminal petition should be worded like this: "disablement of the right of liberty for ten years and confinement to the Department of Corrections for that period". The judge, upon conviction, should then issue a sentencing order: "the right of liberty of the defendant is hereby disabled for a period of x (less than or equal to the ten sought) yhears and he is ordered confined to the
Department of Corrections for a period of y (less than or equal to x) years.

Confinement to a penal institution entails disablement and deprivation of many rights, but only while confined.

Disablement and deprivation of rights following the period of the liberty deprivation is a violation of ex post facto if it is not made an explicit part of the original sentencing order.
8.8.2009 11:05am
Xenocles (www):
"The right to vote is at least as fundamental as the RKBA."

Not from a Constitutional standpoint. The franchise is never explicitly granted anywhere in the document; there are only prohibited reasons for withholding it. In fact, since the franchise amounts to a share of political power over others there is a very reasonable case to be made that it's not a right at all but a privilege that must be granted carefully.
8.8.2009 11:17am
SuperSkeptic (mail):
This debate (and I'm on the Jon Roland's side) reminds me of the "conditions of release" business and the "conditions of probation" business, too. Whole Lotta judicial discretion in there that's not being reviewed, under the same theory byomtov keeps espousing, "well, it's less than actually being locked up in prison, so...doesn't really matter."

I wonder if we will begin to shift these types of (unconstitutional?) latent punishments into this rarely if ever reviewed or practically unreviewed area if we are not careful.
8.8.2009 12:06pm
Kelvin:
As a prosecutor, such deprivations of liberty are very useful in controlling recidivism. The nature of proof and sometimes the standard of proof are less onerous.
8.8.2009 12:51pm
Oren:

It doesn't really accomplish a whole lot, because it doesn't actually prevent a convicted felon from obtaining a firearm if they're willing to break the law. It only disarms the rehabilitated felons, where's the sense in that?

Because when a convicted felon is caught for some other crime, it's often much easier to prosecute the felon-in-possession charger and nets a 5-year MMS. That is to say, there are 100 ways a defendant can weasel out of a "conspiracy to distribute a controlled substance" charge but with the felon-in-possession, it's a slam dunk.

This effectively means fewer criminals on the street.


Enforcing it requires that the vast majority of people, who are NOT convicted felons, PROVE that they're not convicted felons, repeatedly, in order to exercise a constitutional right.

I've had to prove that exactly once when applying for an LTC.


Unless, of course, you consider harassment of law abiding gun owners a benefit, which I strongly suspect was the case for many of the legislators voting for this sort of legislation.

Even accepting that felon disarmament laws are backdoor prohibition, it's terrible politics to go after them. It never ceases to amaze me how bad most guns-rights folks (Alan Gura and the SAF excepted) at realizing this.
8.8.2009 1:47pm
Oren:

"The right to vote is at least as fundamental as the RKBA."

Not from a Constitutional standpoint.

Utter nonsense. The entire point of the Constitution is to create a Republican form of government.


In fact, since the franchise amounts to a share of political power over others there is a very reasonable case to be made that it's not a right at all but a privilege that must be granted carefully.

What possible legitimacy could be assigned to a law that does not have the consent of those it seeks to bind?

I've read far and wide and I cannot discern any other legitimate way for a man to assert the right to constrain his neighbor except that both of them have had equal opportunity to decide the rules.
8.8.2009 1:49pm
Oren:

The RKBA stems from the constitution of nature ...

Really? My copy doesn't have that clause.


Disablement and deprivation of rights following the period of the liberty deprivation is a violation of ex post facto if it is not made an explicit part of the original sentencing order.

I await for vote for automatic felon enfranchisement.
8.8.2009 1:55pm
Oren:


I wonder if we will begin to shift these types of (unconstitutional?) latent punishments into this rarely if ever reviewed or practically unreviewed area if we are not careful.

How can these conditions be unconstitutional? You always have the alternative of serving the sentence given to you by a jury of your peers.

Now, if you think our sentencing laws are draconian and thus we should remove the leverage given to DAs/parole boards by coming back to earth then we can talk.
8.8.2009 1:57pm
SuperSkeptic (mail):
@ oren

In fact, since the franchise amounts to a share of political power over others there is a very reasonable case to be made that it's not a right at all but a privilege that must be granted carefully.


What possible legitimacy could be assigned to a law that does not have the consent of those it seeks to bind?

I've read far and wide and I cannot discern any other legitimate way for a man to assert the right to constrain his neighbor except that both of them have had equal opportunity to decide the rules.


What if you do not consent to that scheme? I for one never have. Rawls might agree with you, though. Maybe our whole constitutional scheme is not legitimate because consent to it is ficticious. (really an aside to this debate however)

I wonder if we will begin to shift these types of (unconstitutional?) latent punishments into this rarely if ever reviewed or practically unreviewed area if we are not careful.


How can these conditions be unconstitutional? You always have the alternative of serving the sentence given to you by a jury of your peers.

Now, if you think our sentencing laws are draconian and thus we should remove the leverage given to DAs/parole boards by coming back to earth then we can talk.


They can be unconstitutional for a number of reasons, including the ones discussed above, due process, a rational relationship to legitimate state interests in retribution/deterrence (or lackthereof), it depends on the facts and particular conditions. Usually, sentences are given by judges not juries.

I don't know what you mean about coming back to earth. I'm not so sure how I feel about sentencing laws, either - I tend to think that they should be non-mandatory and give discretion to judges, really only because mandatory minimums (or mantadory life sentences) can often lead to disparate results that are frankly unjust.

The problem with the conditions, as I say, is that they can go above and beyond the sentence, and as people have been pointing out, can linger with you and severely restrict liberties that are outside the sentence. And particularly because are unreviewed generally.
8.8.2009 2:54pm
PubliusFL:
Oren: Utter nonsense. The entire point of the Constitution is to create a Republican form of government.

That doesn't mean the right to vote is a fundamental right of each individual. Property qualifications etc. were widespread at the time of the founding. A republican form of government (as the Founders understood it, at least) doesn't require universal franchise.
8.8.2009 4:24pm
Oren:


I've read far and wide and I cannot discern any other legitimate way for a man to assert the right to constrain his neighbor except that both of them have had equal opportunity to decide the rules.

What if you do not consent to that scheme? I for one never have. Rawls might agree with you, though. Maybe our whole constitutional scheme is not legitimate because consent to it is ficticious. (really an aside to this debate however)

Yes yes, it's an infinite regress of rules, meta-rules and on and on. At some point we accept that, whatever the inauspicious or illegitimate origins of our government, it is now sufficiently representative to be legitimate.


The problem with the conditions, as I say, is that they can go above and beyond the sentence, and as people have been pointing out, can linger with you and severely restrict liberties that are outside the sentence. And particularly because are unreviewed generally.

But there's the rub, the conditions of probation/parole can never be above and beyond the sentence itself because the defendant has the option of refusing them and serving it out.

That is to say, we assume the defendant is rational and thus the DA/parole board will never offer conditions of probation/parole that are more onerous than the sentence itself.

[ Aside, yes, I was sloppy about "sentence the jury hands out", my apologies. I guess I mean something along the lines of "the sentence prescribed for the crime for which a jury of your peers has convicted you", although that doesn't have the same linguistic flair. ]
8.8.2009 4:57pm
Oren:

That doesn't mean the right to vote is a fundamental right of each individual. Property qualifications etc. were widespread at the time of the founding. A republican form of government (as the Founders understood it, at least) doesn't require universal franchise.

Thankfully we know better now.

Fundamental rights are a strict superset of historical rights, not coterminous with them. That is to say, the rights conceived by the founders are the floor, not the ceiling.
8.8.2009 5:00pm
PubliusFL:
Oren: Fundamental rights are a strict superset of historical rights, not coterminous with them. That is to say, the rights conceived by the founders are the floor, not the ceiling.

True, but constitutional rights are not coterminous with fundamental rights either. It is not necessarily true that every right that ought to be considered fundamental is enforceable through the Constitution as currently written. It was easier for the Founders to write in protections for rights they could conceive of (like the RTKBA) than rights they couldn't.
8.8.2009 5:09pm
cboldt (mail):
RKBA vs. "right to vote" was also discussed in comments following this June 18, 2009 post by Eugene Volokh.
8.8.2009 5:56pm
Oren:
But a representative government is not a "protection" that is in the bill of rights, it's written into the fabric of Art I (and Art V).
8.8.2009 6:15pm
Oren:
How cruel to put the most basic right of a citizen in a representative democracy in square quotes. You can have a Republic without guns (not that I want such a Republic) but you can't have one without voting.
8.8.2009 6:18pm
Brett Bellmore:

Yes yes, it's an infinite regress of rules, meta-rules and on and on. At some point we accept that, whatever the inauspicious or illegitimate origins of our government, it is now sufficiently representative to be legitimate.


Technically, many of us merely accept that, however illegitimate, it will beat the crap out of us and drop us down a deep, dark pit if we don't knuckle under. I wonder how many public officials understand the difference, or even care?
8.8.2009 6:54pm
Xenocles (www):
As has been said, there can be representative government without universal suffrage. The proof is no further away than the fact that this country has always been a republic and has never had universal suffrage.

Oren, are you talking about this line from Article 1?

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.


This illustrates pretty much exactly what I said; the qualifications for franchise are negotiable state-to-state within the limits set by subsequent amendments (race, gender, poll tax, and age if over 18).

As for this gem:

What possible legitimacy could be assigned to a law that does not have the consent of those it seeks to bind?


I'm glad we agree; I trust you'll support me when I refuse to pay the share of my taxes proportional to the share of the budget that pays for programs I oppose.
8.8.2009 8:11pm
LarryA (mail) (www):
Enforcing it requires that the vast majority of people, who are NOT convicted felons, PROVE that they're not convicted felons, repeatedly, in order to exercise a constitutional right.
I've had to prove that exactly once when applying for an LTC.
Really? You’ve never purchased a firearm from a dealer? You either have to go through a NICS check or show your CHL. Either is “proving you aren’t a felon.” Also, I don’t know about your state, but Texas licensees go through a background check every time they renew. That’s true in any state where the FBI recognizes a CHL as an alternative for a NICS check.
The right to vote is at least as fundamental as the RKBA.
The right to vote is a right of a citizen. The right to keep and bear arms is a right of a person.
You can have a Republic without guns (not that I want such a Republic) but you can't have one without voting.
A republic with a disarmed populace is a nice theory, one gun control folks always want to try out. But where are the real-world long-term examples of such? Our own republic, however, survived quite a while with only a minority of the residents allowed the vote. But I agree that I wouldn’t want to go back.
8.8.2009 8:20pm
Andy Freeman (mail):
> Because when a convicted felon is caught for some other crime, it's often much easier to prosecute the felon-in-possession charger and nets a 5-year MMS. That is to say, there are 100 ways a defendant can weasel out of a "conspiracy to distribute a controlled substance" charge but with the felon-in-possession, it's a slam dunk.

For non-felons, those 100 ways to weasel out are acceptable. Why are we treating ex-felons differently?

> This effectively means fewer criminals on the street.

If that's the goal, it's easier to simply reduce the first-time conviction threshold.
8.9.2009 12:41am
Oren:

As has been said, there can be representative government without universal suffrage.

Sure, and there can be a pig wearing lipstick and a Sunday dress. So what?


I'm glad we agree; I trust you'll support me when I refuse to pay the share of my taxes proportional to the share of the budget that pays for programs I oppose.

Just as soon as you vacate the property of the Sovereign People of the United States, you will be released from their laws.


Really? You’ve never purchased a firearm from a dealer? You either have to go through a NICS check or show your CHL. Either is “proving you aren’t a felon.” Also, I don’t know about your state, but Texas licensees go through a background check every time they renew. That’s true in any state where the FBI recognizes a CHL as an alternative for a NICS check.

When I purchase from a dealer, I give him my State LTC card, which suffices.


The right to vote is a right of a citizen. The right to keep and bear arms is a right of a person.

So you disagree with NYS §265.01(A)(5):

Criminal possession of a weapon in the fourth degree.

(A) person is guilty of criminal possession of a weapon in the fourth degree when:

(5) He possesses any dangerous or deadly weapon and is not a citizen of the United States;


At any rate, even if I believed in natural law (and I don't on all days), I don't see why self-determination should be any different that self-defense.
8.9.2009 1:21am
Oren:

For non-felons, those 100 ways to weasel out are acceptable. Why are we treating ex-felons differently?

We don't. We usually try to pin them with the (slightly harder) gun laws relating to possessing a gun in the commission of a crime.
8.9.2009 1:22am
Oren:

Technically, many of us merely accept that, however illegitimate, it will beat the crap out of us and drop us down a deep, dark pit if we don't knuckle under.

On a fundamental level, I don't think anyone (even Rawls) disagrees with that. The point is that if you rape my sister, everyone will agree on the legitimacy of the subsequent beatings &dropping that you get (provided the law gets to you before I do).

After that, it's just negotiation on the specifics.
8.9.2009 1:24am
cboldt (mail):
-- So you disagree with NYS 265.01(A)(5) --
.
As the saying goes, "read on." This was covered after you brought it up in June: See the thread linked above, and linked again here at 6.19.2009 1:10pm.

Section 265.20 Exemptions
a. Sections 265.01 ... shall not apply to: ...
4. Possession of a rifle, shotgun or longbow for use while hunting, trapping or fishing, by a person, not a citizen of the United States, carrying a valid license issued pursuant to section 11-0713 of the environmental conservation law.
8.9.2009 9:28am
Brett Bellmore:

When I purchase from a dealer, I give him my State LTC card, which suffices.


Suffices to prove you're not a felon. That's hardly the stuff of refutation.

During the Clinton administration, sales of firearms were shut down, essentially nation-wide, for days at a time, by the simple expedient of shutting off the NICS system "for maintainance". That's a hell of a price to pay for merely inconveniencing felons who've already served their sentences.



The point is that if you rape my sister, everyone will agree on the legitimacy of the subsequent beatings &dropping that you get (provided the law gets to you before I do).


Tony Soprano could wack the guy who raped your sister, and it would be widely viewed as legitimate. The point is that the legitimacy of actions which are almost universally approved of regardless of who does them doesn't imply the legitimacy of actions whose malum is far more prohibitum than in se, or the system that engages in them. At some point it matters if a large segment of the population thinks the government is going beyond it's legitimate bounds.

We could end up in a very nasty place, if the people running the government think otherwise.
8.9.2009 9:42am
Andy Freeman (mail):
> We don't [treat non-felons differently]. We usually try to pin them with the (slightly harder) gun laws relating to possessing a gun in the commission of a crime.

That "harder" option is available for felons as well.

As to "don't", I'll repeat Oren's statement again, pointing out that it's easier to get a conviction for ex-felons and, presumably endorsing this.

>>>Because when a convicted felon is caught for some other crime, it's often much easier to prosecute the felon-in-possession charger and nets a 5-year MMS. That is to say, there are 100 ways a defendant can weasel out of a "conspiracy to distribute a controlled substance" charge but with the felon-in-possession, it's a slam dunk.

That's a pretty clear statement that the "weaseling" for ex-felons is different from that for first-timers.

Again, from Oren's original comment

>>> This effectively means fewer criminals on the street.

If the weaseling would otherwise keep criminals on the street, why not address that? Why treat ex-felons differently?
8.9.2009 12:08pm
Brett Bellmore:

Why treat ex-felons differently?


Because essentially what Oren is defending is making it illegal for ex-felons to engage in the harmless exercise of a civil liberty. Making it illegal for them to do this, at some cost to the non ex-felon majority.

And he is defending this because if an ex-felon is suspected of having done something genuinely offensive, but can't be proven to have done it, they can be put behind bars for having done something harmless.

So that they can be put behind bars, even if they're innocent.

Oren isn't ready to advocate making it easy for the government to imprison innocent people who don't at least have some past criminal record. Yet.
8.9.2009 1:25pm
Deep Lurker (mail):

I really don't get the objection to barring convicted felons from owning firearms. A convicted felon loses lots of rights for some period of time - he's in prison. Why is it suddenly unconstitutional to deprive him of one more for life?


1. Because it raises ex post facto concerns, wrt crimes committed prior to the bar to firearms ownership.

2. Because it raises federalism concerns. This is the federal government imposing extra punishment on someone convicted of a state crime in a state court.

3. Because it raises 8th amendment (cruel &unusual punishment) concerns. A lifetime ban for all felonies? And even some misdemeanors? Really?

4. Because unlike stripping felons the right to vote, there is no explicit provision in the Constitution allowing it.

5. Because it would be absurd and horrific to treat the other rights guaranteed by the Bill of Rights in the same way. Imagine if Congress could simply pass a law stripping ex-cons of the right to freedom of speech, freedom from arbitrary searches, freedom from self-incrimination, or freedom from cruel &unusual punishment. The freedom to own firearms is just as basic &important, and shouldn't be treated any differently.

Limiting the exercise of rights while a person is in custody is one thing. Limiting them afterwards is something entirely different
8.9.2009 8:11pm
Xenocles (www):
Oren, the only way to square this:

"Just as soon as you vacate the property of the Sovereign People of the United States, you will be released from their laws."

with this:

"What possible legitimacy could be assigned to a law that does not have the consent of those it seeks to bind?"

is to equate "consent" with "physical existence inside the jusrisdiction of the government in question," which is not an identity.

I don't want to overlook your inartful use of the word property, either. I'm not writing this from US property; my apartment belongs to an LLC. If I buy a house, it will belong to me, not to "the People" of any country.
8.9.2009 9:57pm
Andy Freeman (mail):
> So that they can be put behind bars, even if they're innocent.

That's not quite fair. It's more like "So that felons can be put in jail for doing things that would not result in a conviction if they weren't felons."

I'm sympathetic to the idea that felons are likely to re-offend. Note that the extent that they actually do is accounted for by "not felon" law.

Some argue that one should treat ex-felons more harshly, that is, differently, to try to reduce re-offense. One possible difference, which Oren supports, is making it easier to convict ex-felons. However, Oren also says that he doesn't want to treat felons differently.
8.10.2009 9:39am
Brett Bellmore:

That's not quite fair. It's more like "So that felons can be put in jail for doing things that would not result in a conviction if they weren't felons."


Yes, but the expressed point of being able to put them in jail for things that wouldn't result in a conviction if they weren't felons, was to simplify things when you couldn't prove they were guilty of the offense you were really concerned with.

And a frequent reason for not being able to prove somebody is guilty of something, is because they're NOT guilty of it.

So, I'd say it's a perfectly fair characterization.
8.10.2009 12:31pm
Oren:

I don't want to overlook your inartful use of the word property, either. I'm not writing this from US property; my apartment belongs to an LLC. If I buy a house, it will belong to me, not to "the People" of any country.

There is no allodial title in the USA. You 'own' your land fee simple, meaning that you can be made to pay rent (in the form of property taxes), it is seizure to satisfy debts and, most relevantly, it is subject to the police power.

Your ownership of your land is, fundamentally, derived from and subject to the authority of the Sovereign (here, The People of whatever State). In the absence of that entity, there will be nothing to prevent the, shall-we-say 'extra judicial', separation of you from your property.
8.10.2009 12:32pm
Oren:


is to equate "consent" with "physical existence inside the jusrisdiction of the government in question," which is not an identity.

"Consent" comes from The People as a body. As a Sovereign People, they have the authority to make binding law.

You are confusing the abstract notion of consent of the governed with an individual that (despite receiving all the benefits of the state -- protection of his life and property for one) demands to be free from the constrains adopted everyone else.
8.10.2009 12:35pm
Oren:


Because essentially what Oren is defending is making it illegal for ex-felons to engage in the harmless exercise of a civil liberty. Making it illegal for them to do this, at some cost to the non ex-felon majority.

And what Brett is trying to do is backhandedly prevent any forward movement on gun ownership by alienating the majority of voters. By continuing to advocate positions that are unacceptable to the mainstream, he facilitates the common perception of RKBA-supporters as disconnected from the concerns of ordinary citizens. Attempts to loosen gun control laws in the country must contend with the negative public image created by his fringe positions.

By making it impossible for moderate RKBA advocates to accomplish any reform in the face of increasing gun control, Brett satisfies his desire to be constantly outraged at the state of the law.


[ In the future, if you refrain from posting about my goals, I'll reciprocate. ]
8.10.2009 12:43pm

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