Tonight, we close out the discussion on felons, misdemeanors, and gun rights.
1.) Opening Statements. Let’s state the obvious right out front. We are in no way suggesting that these crimes shouldn’t be crimes. There is no sane individual on the planet who would suggest that beating one’s spouse, rape, or any other violent crime shouldn’t be punished. What we are discussing here is the scope of that punishment, and specifically whether permanent restrictions on the person’s rights are fair or, even more, constitutional in the first place. (Although, gun control advocates can/will/have spun the idea as supporting the actions of and, indeed, directly arming the criminals. Let’s just say I know from experience.)
Also before we begin, I would like to note a few Twitter/Facebook friends who have helped out here, and provided their own opinions on the subject. I would like to thank Ryan Southerland, Anna Maria Perez, CR Williams, CattyConservative (with whom I discussed the topic at length outside of Twitter, as well) and Stormy Gower for their opinions and perspectives on this subject….and for being considerably more civil than the aforementioned anti-gunner I spoke with. I thank you for your ability to calmly approach the topic and your ability to tolerate my tendency to play devil’s advocate.
2.) My stance. It is important, as a matter of full disclosure, that you know where I am coming from. I hold the belief that a ban on firearms for misdemeanor offenses is absurd. As you can see that doesn’t sit well with everybody. Contrary to the accusations of the anti-gunner noted above, I do not “support wife-beaters”. I simply don’t believe a permanent ban for a misdemeanor offense is logical. I don’t take the Pat Robertson approach of “you don’t want to get your father busted” if he’s waving a gun around, either. Something like that needs to be dealt with before it gets worse.
In short, I am all for every attempt to deal with a problem before it escalates (indeed, de-escalation should be the first action one takes if at all possible in any conflict), I am NOT for treating misdemeanor offenses as felonies, and stripping people of their gun rights (and ONLY their gun rights) for misdemeanor offenses. If the person cannot be trusted with a firearm, he/she should not be released at all. If the crime in question deserves the punishment of a felony, it should be treated as a felony.
Finally, it goes without saying that I don’t support the actions of the people convicted of these crimes. Again, we are discussing the RIGHTS of the person; what they are, if they exist, and to what extent if they do. We are not discussing the ACTIONS of the person.
It should go without saying, but since the spin is that supporting the person’s rights IS supporting the person’s actions, it’s something I want to get out of the way right now.
(Does a defense attorney support the at-that-point-alleged actions of his client? No. He supports their RIGHTS. If you fail to learn the difference now, the rest of this is going to either confuse you or result in a lot of misdirected anger. Stated differently, the Boston Bomber suspect is almost certain to be convicted, but to say “we know he did it, therefore he has no rights” is both unconstitutional and sets an extremely dangerous precedent of stripping people of their rights via accusation, and therefore by default without evidence or conviction. That is a road you do not want to go down.)
Supporting the RIGHTS of the accused IS NOT THE SAME as supporting the ACTIONS of the accused. The former is correct if difficult, the latter is deranged. Learn the difference, and let’s get to business.
3.) Misdemeanors. Federally, the only misdemeanor that results in a permanent ban is a conviction of domestic violence. This was accomplished by way of what has become known as the Lautenberg Amendment (named after its author, Senator Frank Lautenberg (D-NJ) ). An article by Examiner.com’s Liston Matthews called for the repeal of the Lautenberg Amendment, arguing that A.) “as despicable as misdemeanor domestic violence is, it is still a misdemeanor, not a felony” and B.) that the ex post facto manner in which the ban was applied was and is both unfair and unconstitutional. (Ex post facto, meaning after the fact. In other words, those with domestic violence misdemeanors BEFORE the amendment was signed into law were barred from owning firearms as well. In a way, additional punishment AFTER the initial sentence was already handed down.) Recently, the Lautenberg Amendment was upheld in a 9-0 decision, though the justices disagreed on rationale. Specifically, Justice Antonin Scalia. According to the New York Times
In a concurrence, Justice Antonin Scalia agreed that the federal law applied to Mr. Castleman. But he objected to the notion that domestic violence encompassed more acts than violence did, calling that an absurdity “at war with the English language.”
Justice Scalia criticized Justice Sotomayor for relying on “law-review articles, foreign government bureaus and similar sources” for her broader defintion. Such sources, he said, “are entitled to define ‘domestic violence’ any way they want”
He closed by suggesting “when everything is domestic violence, nothing is.”
4.) Felony: Background. For whatever reason, there is more available on restoring rights to felons than to those convicted of misdemeanor offenses. Whether it’s voting rights, gun rights, or rights in general.
The practice of banning felons from voting, referred to as “felon disenfranchisement”, has been getting a lot of attention as of late. In some circles, this has expanded to asking if felons should have other rights restored as well.
5.) Felony: Voting Rights. The Brennan Center for Justice has an entire page dedicated to restoring voting rights for those with a past criminal conviction. At present, only 3 states permanently ban ALL felony convictions, while 8 ban certain felonies, but not all.
On the Federal level, the “Democracy Restoration Act” was introduced by two Democrats, Representative John Conyers of Michigan and Senator Ben Cardin of Missouri. The bill, to hear supporters say it, would restore the rights of about 4.4 million people to vote in Federal elections despite previous convictions. According to Congress.gov the bill was referred to the Subcommittee on the Constitution and Civil Justice on June 9th. Beyond that, no further details are available.
In February of this year, Attorney General Eric Holder called for states to lift the ban preventing felons from voting. Shortly afterwards, Al-Jazeera America released an op-ed in support of the notion of restoring voting rights to felons, taking issue speciically with Florida’s laws.
(Side note 1: Congress.gov is a rebuilt database set to replace the THOMAS system at the end of this year. THOMAS is/was the official public database on all bills, Committees, etc., but it hasn’t really been upgraded in years.
Side note 2: I know the background of Al-Jazeera America. What I know about and what I care about aren’t necessarily the same thing. If it’s good material, it’s good material. The genetic fallacy has no place on the Midnight Run.)
6.) Felony: Gun Rights. More recently in some circles, the discussion has expanded to cover gun rights in addition to voting rights. This, as you might expect, has not gotten nearly as much backing. In fact, there is very little available on the subject. Regardless, there is enough material to present arguments both for and against the restoration of gun rights. Let us begin with those against the idea.
In April of this year, The Truth About Guns issued an op-ed saying that felons should not have their rights restored. The column says in part:
In my opinion, someone who willfully abuses their rights in order to injure another human being has proven that they are unable to be trusted with those rights. That’s the reason I don’t oppose the NICS check at gun stores, as it makes sure that those who have proven incapable of handling the responsibility of their rights aren’t allowed to legally purchase firearms.
Some argue that the prison sentence alone is sufficient, and afterwards they’ve “paid their debt” and can have their rights returned. But anyone who has been to an elementary school knows that giving the playground bully a time out doesn’t stop him from terrorizing the other children the next day. That child has proven they are incapable of controlling themselves and needs to have their recess privileges revoked until they have demonstrated that they have themselves under control. Adult offenders see prison sentences the same way, as a time out before they can get back out and continue their life of crime.
On the other side (somewhat) is an article from Bloomberg View. The author does not support a blanket restoration, saying that the evidence points to a substantial risk to public safety, but says that a blanket ban is also unfair. The Bloomberg View article says in part:
Now turn that same question to gun rights: What risk does society run by allowing ex-cons to possess guns? Based on the evidence, a substantial risk. Felons re-offend at a high rate. Allowing them to do so with a gun in their hands puts society in grave danger. And there are many instances — some documented in a 2011 New York Times expose — of felons who committed violent crimes after having their gun rights restored.
A blanket restoration of felons’ gun rights would pose a real danger to society. Not so with voting rights. Nevertheless, any blanket ban on the exercise of rights is bound to create injustices, and just as some states have made it too easy for violent felons to recover their gun rights, some states have made it too hard for non-violent offenders to recover theirs. A strong case can be made that those who pose the least risk to society — perhaps non-violent first offenders with no drug convictions — should have their gun rights restored after they have served their time and completed their probation or a minimum waiting period with no re-arrests.
Back in 2013, Youtuber Iraqveteran8888 released a 17-minute video on the subject of felons/misdemeanors and gun rights, arguing that permanent bans were unfair to those who actually wanted to defend themselves and their families (those who have, as we often say, “turned their life around”). The video also makes the argument that once a person is released from prison, they have “paid their debt to society” and should have their gun rights restored.
This aspect has seen some activity recently in Louisiana. During the 2012 elections, voters overwhelmingly approved an amendment to the state Constitution stating that the right to bear arms was fundamental, and that laws centered around regulating such right be subject to strict scrutiny. That the amendment saw gun rights as fundamental has led to a handful of challenges to the state’s ban on felons owning firearms. In May, a series of cases on the subject were argued before the state’s Supreme Court. It remains to be seen how and if this would collide with Federal restrictions on gun ownership.
7.) Felons: ALL rights. Backing out even further, an article in the New York Times called for the restoration of all rights to felons. The piece, titled “In Search Of Second Chances,” rests heavily on the above idea that a person has “paid their dues” upon release, and uses the case of Martha Stewart as an example. It reads in part:
At least 65 million people in the United States, or more than one in four adults, have a criminal record, which can mean anything from an arrest to a prison sentence. This can trigger severe penalties that continue long after punishment is complete, according to a new report by the National Association of Criminal Defense Lawyers.
Many of these penalties, known as collateral consequences, are mandatory, and are imposed regardless of the seriousness of the offense or the person’s individual circumstances. Laws can restrict or ban voting, access to public housing, gun possession, and professional and business licensing. They can affect a person’s immigration status, parental rights, credit rating, ability to get a job, and eligibility for benefits.
In all, more than 45,000 laws and rules serve to exclude vast numbers of people from fully participating in American life.
8.) Felons: NO rights. In doing research for this piece, I came across an interesting bit of historical background I would like to share. According to Black’s Law Dictionary, the idea of banning criminals from a multitude of activities/rights has a long-standing backing, dating back to the 1870s. Called “civil death,” the idea was that criminals convicted of heinous crimes were, as far as the law was concerned, dead.
There are many who still hold this belief. The idea that a felon convicted of murder, for example, should be permanently barred from many things in civil society still rings true with many people; arguing that they “knew the risks” when they committed the crime. This was discussed in the Truth About Guns piece above. There is not much that I could find directly relating to this in the gun debate, but it is worth bringing up this perspective, regardless.
9.) Closing thoughts. If we are honest, it is highly unlikely that the restoration of gun rights will see much traction anytime soon on any level. With regards to gun rights and misdemeanor convictions, groups like the NRA have been quietly backing off of opposing tighter restrictions on those with misdemeanor domestic violence convictions. (Though the NRA still opposes expanding the bans to related crimes, like stalking and battery. Interestingly Louisiana passed such laws while the state Supreme Court cases regarding felons were going on.) Support is even worse for restoration of gun rights for felons, especially with statistics showing that roughly 67% of those released from prison are rearrested within three years.
Nonetheless, there seems to be some movement in that direction, especially with the action in Louisiana. Depending on where the cases before the Louisiana Supreme Court goes, it could be the start of a long fight to restore (at minimum) the rights of non-violent felons.
Regardless, I hope you have enjoyed this look into what is a relatively new (and fairly complex) debate. Next week, we return to our standard news format.
Stay informed. Stay alert. Stay free.